What Employers Should Know Now That Ohio Legalized Medical Marijuana

(Summer 2016) On June 8 Governor John Kasich signed House Bill 523, making Ohio the 25^th state (plus Washington DC) to legalize medical marijuana.  The law will go into effect this September.  However, marijuana for medical use will not be available for purchase within the state for up to two years while the state establishes the infrastructure and regulations around growing and selling the drug.

House Bill 523 Highlights

House Bill 523 establishes a Medical Marijuana Control Program under the Ohio Department of Commerce and the State Board of Pharmacy and creates the Medical Marijuana Advisory Committee to develop recommendations for how the program should operate.

Under the Medical Marijuana Control Program

• Marijuana can be recommended for medical use by a physician for patients diagnosed with one of 21 qualifying medical conditions including AIDS, cancer, epilepsy, hepatitis C, chronic pain and post-traumatic stress disorder.
• Marijuana can only be obtained through licensed growers and marijuana cannot be grown at home or for personal use.
• Marijuana will only be available in specific forms, e.g., oils, edibles, patches and tinctures.
• Smoking is not permitted, though it can be vaporized.
• The amount of tetrahydrocannabinol (THC) – the high-inducing chemical – is restricted. Plant material cannot contain more than 35% THC and extracts cannot have more than 70% THC.

Employer Protections

Unlike previous marijuana bills or ballot initiatives introduced in the state, House Bill 523 contains a significant number of employer protections:

• Employers are not required to accommodate an employee’s medical marijuana use, possession or distribution of the drug.
• Employers are allowed to operate a drug-free workplace program, including a zero-tolerance drug policy, and conduct drug testing.
• Employers are allowed to make hiring and firing decisions, and take other employment actions against an employee resulting from that person’s medical marijuana use or possession.
• Individuals who experience adverse employment action because of their medical marijuana use, possession or distribution are not allowed to sue the employer.
• Individuals terminated from their jobs because of medical marijuana use, possession or distribution are not eligible for unemployment.

What It Means for Employers

The protections this bill establishes for employers are pretty significant.  But that doesn’t mean things will be easy.  As with any marijuana bill, House Bill 523 brings state law into conflict with federal law and will likely cause confusion.

This bill allows those operating a drug-free workplace program to stay the course.  (For companies who don’t have a drug-free workplace, it might be a time to consider implementing a program.) However, it is very important that employees know and understand their company’s drug-free workplace program and policy — especially regarding marijuana use.  Educating employees about the impact marijuana could have on them personally or their families would also be helpful.  The more everyone understands, the better prepared they can be if a situation involving marijuana arises.

Other Ohio Marijuana Initiatives

Reacting to the numerous citizen-led initiatives, House Bill 523 was fast-tracked through the Ohio Congress in order for Kasich to have the opportunity to sign the bill before June 30.  One such initiative, Ohioans for Medical Marijuana, backed by the Marijuana Policy Project, has since announced the suspension of their efforts. They were initially working to get a marijuana initiative on the ballot, but backed off, citing the difficult nature of fundraising to support their plan.

At least one citizen group is still moving forward with its plans. Grassroots Ohio announced on their website that they will continue their efforts to get the Medical Cannabis and Industrial Hemp amendment on the 2017 ballot. Unlike previous citizen initiatives, this amendment does not explicitly spell out rules and regulations for a medical marijuana industry and instead focuses on the general “right” individuals 21 years old or older have for using, possessing, growing, etc. medical marijuana and hemp.

Where to go from here

Even though marijuana will not be available for purchase in Ohio for roughly two years, the employers could start feeling the effects of this bill’s passage in September.  House Hill 523 will allow qualifying Ohioans with a physician’s recommendation to purchase medical marijuana out of state and bring it home.

It is important to remember that even though Ohio has legalized marijuana as medicine, marijuana for any use is illegal on the federal level.  The Food and Drug Administration has not deemed the marijuana plant medicine so there is no such thing as a prescription for marijuana.  This means a person cannot purchase it at a pharmacy and employers do not have what they need to treat it like they do legitimate prescriptions, e.g., side effects or activities to avoid while using the drug.

However, by making medical marijuana legal in Ohio, some employers may decide they want to accommodate the use of the drug by an employee.  If that is the case, there are many issues to consider before making such a policy change. Because of the sensitive nature of the topic, and its intersection with many other laws and employment issues, companies should consult with DFWP experts  to craft policy directives.

However your company decides to respond to the passage of HB 523, the biggest thing to remember is to make sure your employees understand your rules and expectations regarding marijuana.