On Wednesday, June 8, 2016, Governor John Kasich signed H.B. 523 into law. The new law authorizes the prescription and use of marijuana for medical purposes and establishes the Medical Marijuana Control Program (MMCP) to provide oversight. While it becomes effective on September 6, 2016, as a practical matter, it may take up to 2 years to become fully operational.
Under the law, cultivators and dispensaries must be licensed by the state, and physicians must receive state certification and only prescribe to bona fide patients. Medical marijuana may only be used by registered individuals who have one or more qualifying medical conditions. The 20+ medical conditions include HIV/AIDS, cancer, epilepsy, fibromyalgia, Hepatitis C, multiple sclerosis, Parkinson’s disease, traumatic brain injury, intractable or chronic and severe pain, etc. The law also specifies that only certain forms of marijuana are permitted: oils, tinctures, edibles, patches, and plant material. Vaporization (“vaping”) will also be legal. However, the law does not provide for smoking or combustion, and home/personal cultivation will not be allowed. Recreational use of marijuana will remain illegal in Ohio.
Implications for Ohio Employers:
So how will the new law affect Ohio employers and businesses? Remember that marijuana—in any form, and for any purpose—is still illegal under federal law (the Controlled Substances Act). This means that Ohio employers and businesses are still afforded protections and may still implement certain restrictions in the workplace. The law’s key provisions include:
• Employers are not required to permit or accommodate employees’ use, possession, or distribution of medical marijuana. Keep in mind, however, that once the law takes effect, an employee may have a legitimate medical condition which necessitates his/her prescription for medical marijuana, and that underlying condition may need to be reasonably accommodated as a disability in some way.
• Employers may establish and continue to enforce their drug testing policy, drug-free workplace policy, or zero-tolerance drug policy. Also, the administrator of workers’ compensation retains authority to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program.
• Employers are not prohibited from refusing to hire, discharging, disciplining, or taking adverse employment actions against an employee with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s use, possession, or distribution of medical marijuana. Similarly, an individual employee may not commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or taking adverse employment action against him/her with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana. For the purposes of unemployment benefits, an employee who is terminated for use of medical marijuana in violation of the employer’s policies is considered to be discharged for “just cause.”
That being said, it will take time for the law to be fully implemented and new developments may occur. Employers should remain vigilant and informed and take any necessary steps to adjust/adapt to any potential changes. For instance, employers should carefully review and potentially revise their drug-use policies to ensure they clearly communicate their expectations to employees, and are in compliance with the new law.
Please feel free to contact David Riepenhoff at DRiepenhoff@fishelhass.com or (614) 221-1216 if you have any questions.