On March 10, 2015, a bipartisan group of U.S. senators introduced the Compassionate Access, Research Expansion, and Respect States (“CARES”) Act. The primary focus of the legislation is to reclassify marijuana under the Controlled Substances Act from a “schedule I” substance to “schedule II” substance under Federal law. Schedule I drugs are defined to have a high potential for abuse, no currently accepted medical use in treatment and are considered unsafe to use. The reclassification would mean marijuana would no longer be a federally-criminalized substance but would be one that has recognized medical uses but is still regulated, like opioid narcotic pain relievers such as morphine and oxycodone.
To date, 23 states and the District of Columbia have legalized medical marijuana, though the substance remains illegal under Federal law. Four states have legalized recreational marijuana. Because the substance is illegal under Federal law, the Americans with Disabilities Act does not protect current users when the employer takes action on the basis of that use. Many employers have continued to enforce zero-tolerance drug free workplace policies and have refused to make workplace accommodations for medical marijuana users. Some believe the CARES Act could clear-the-way for additional State de-criminalization of medical marijuana and add to legal challenges by employees in states that have legalized medical marijuana use.
There are currently five organizations attempting to place marijuana deregulation amendments to the Ohio Constitution on the ballot within the next two years. These proposed amendments vary greatly in scope. The most limited proposals would decriminalize marijuana use for medicinal, or “therapeutic,” purposes. Other proposals would decriminalize marijuana use generally and establish protections from termination for those who chose to consume marijuana. A proposal by Ohioans to End Prohibition would prevent employers from terminating an employee who has tested positive for any marijuana compound. The measure would limit employers’ ability to terminate an employee to only those who use marijuana during work hours or on company property. How employers are to make that determination through testing is unclear.
This topic will continue to develop rapidly on the State and Federal level. Contact David Riepenhoff at driepenhoff@fishelhass.com with any questions.
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