Ohio’s medical marijuana law will be effective September 8, 2016. Under this law, doctors will be able to prescribe marijuana to individuals within the state who have been diagnosed with certain medical conditions or diseases. The State is still working out the details of how patients can get medical marijuana, rules on prescriptions, and where it can be grown. In the meantime, many employers are wondering, how does this affect my business?
In a short answer, not much has changed on the employment front. This is because the legislature built in specific protections for employers that allows it to treat medical marijuana (and its use by employees) different from any other prescribed drug.
Employers may still consider marijuana use – even if for medical purposes – a violation of the company’s drug policies. Applicants can still be denied employment based upon a positive drug test, and employers may discipline or terminate employees who test positive for marijuana on company drug tests, including post-accident/injury or reasonable suspicion tests, even if they have a legal prescription to use it. Employees subject to State or Federal drug testing (CDL holders, for example) are still bound by the rules for those licenses.
So what should Ohio employers do?
First, if you don’t already have a drug & alcohol policy, create and distribute it. A good policy will prohibit being under the influence of drug/alcohol, as well as possession on company property. The policy should allow for testing at any time, but most importantly post-accident/injury and upon reasonable suspicion. Refusal to test, a delay in testing, adulteration or attempted adulteration should all be listed as being the same as a positive test. And, with the new law in place, existing policies should be updated to put employees on notice that a prescription for medical marijuana does not exempt them from these rules. If you do pre-employment drug testing, advise applicants that medical marijuana is not an exception to the test, and that employment can be denied for positive test results.
If medical marijuana comes up as an issue within an ADA accommodation request or an FMLA leave request, employers should consult legal counsel. Although employers are not required to provide accommodation for use of medical marijuana, underlying medical conditions may still be protected.
If you have any questions regarding Ohio’s medical marijuana law and how it affects your business, please contact Jennifer Corso. jcorso@77.104.138.33, 216-381-3400.