As Ohio gears up for legal medical marijuana to be fully implemented this fall, many employers are unsure of how this will affect their drug-policy and employment decisions when it comes to medical marijuana license holders. Will drug testing policies go up in smoke?
The short answer is no. Under the new medical marijuana law, employers still have broad discretion to regulate medical marijuana use in the workplace.
Specifically, the new medical marijuana law does not interfere with an employer’s ability to adopt and enforce a zero-tolerance policy. Employers may continue to prohibit use, possession or distribution of medical marijuana in the workplace.
Further, the new law expressly states that it does not permit a person to “bring a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person” as it relates to medical marijuana use.
The new law also does not change employers’ obligations under the Americans with Disabilities Act (“ADA”). Employers are not required to “permit or accommodate an employee’s use, possession, or distribution of medical marijuana.” Marijuana use is still illegal under federal law, and as such, medical marijuana is not eligible for reimbursement from flexible spending accounts (“FSA”) or health savings accounts (“HSA”).
Employers need not worry about altering their zero-tolerance drug policies in response to legalization of medical marijuana. Though employers should consider updating existing drug policies to expressly state that regardless of the legalization of medical marijuana, its use, possession, and distribution is prohibited under the work rules.
For any questions, feel free to contact David Riepenhoff (driepenhoff@fisheldowney.com) by email or phone (614) 221-1216).