As we outlined more fully in our earlier post, Ohio’s new medical marijuana law takes effect next month. Employers should be reminded that business groups lobbied for an exception allowing employers with drug-free workplace policies to take adverse action against applicants and employees for medical marijuana use.

Employers who want to prohibit employees from using medical marijuana on and/or off the job (or deny employment based on medical marijuana use detected in a pre-employment drug test) must establish drug-free workplace policies or revise their current ones to include a prohibition on marijuana use—preferably by specifically calling out medical marijuana use. Additionally, employers who utilize the state fund for workers’ compensation insurance can obtain a lower premium by establishing a drug-free workplace program that tests for cocaine, marijuana, methamphetamine, PCP and opiates.

A reminder of the key points to remember:

  1. Employers are not required to accommodate use, possession or distribution of medical marijuana.
  2. Employers can refuse to hire, discharge, discipline, or take other adverse action against applicants or employees who use, possess or distribute medical marijuana.
  3. Employees and applicants cannot sue employers for adverse action based on medical marijuana use.
  4. Employees terminated under workplace drug testing or drug-free workplace policies will be considered terminated “for cause” and will not receive unemployment benefits.
  5. Employers can establish and enforce drug testing, drug-free workplace and zero-tolerance policies.
  6. U.S. Department of Transportation (DOT) mandated testing remain valid.
  7. Drug testing policies under the Ohio Bureau of Worker’s Compensation’s Drug-Free Safety Program (providing workers’ compensation premium rebates) remain valid.
  8. The rebuttable presumption that an employee is ineligible for workers’ compensation benefits if the employee, when under the influence of medical marijuana, causes his/her own workplace injury remains valid.