Ohio’s medical marijuana law went into effect on September 8, 2016. Under the new law, Ohio citizens who suffer from one or more specific illnesses or conditions can receive a note and “recommendation” from a doctor allowing them to possess and use certain forms of marijuana. As of yet, the impact of the law may be muted because there aren’t any dispensaries open in Ohio where citizens can actually purchase marijuana. However, citizens can procure marijuana in other states and bring it back to Ohio. Employers should be prepared for how to handle employees who begin to use medical marijuana.
The first question that comes to many employers’ minds is whether the employer will have to accommodate an employee’s use or possession of medical marijuana. The short answer is that employers will not have any such duty. The Ohio law does not prohibit employers from banning the use or possession of marijuana on the job or taking other adverse action against employees for marijuana use. Further, Federal law, including the Americans with Disabilities Act and the Family Medical Leave Act, do not protect marijuana use. As such, employers can likely continue to prohibit the use or possession of marijuana, including medical marijuana, as part of an employer’s drug policies.
However, employers should make sure that their anti-marijuana policies are in writing and provided to employees. Employers who do not have a well-documented marijuana policy could expose themselves to allegations of discrimination. In addition, employers who already have existing written drug policies should remind employees that their drug policies include the prohibition of medical marijuana.
A second key question for employers is whether they will be forced to provide access to medical marijuana either through their private health insurance plans or through workers’ compensation benefits. Again, the short answer is no. As marijuana is still illegal under Federal law, private insurers are not required to provide it as part of a health insurance plan. With respect to work-related injuries, the Ohio BWC will not provide medical marijuana to injured workers as marijuana is not an FDA-approved drug.