To date, 33 states, including Ohio, have legalized marijuana in some form. Ohio legalized the use of medical marijuana for individuals with various medical conditions, including cancer and chronic pain in 2016, and the first dispensaries in Ohio opened at the beginning of this year.

So how are you going to handle marijuana use by your employees?

The law regarding an employer’s right to regulate marijuana use by employees is evolving, but extremely important for you to know. This Compliance Checkup will cover the issue of an employer’s rights and obligations regarding the use of medical marijuana by their employees.

What rights does Ohio’s medical marijuana law grant to employees?

Ohio law provides no protection for medical marijuana use in an employment context. Therefore, an employee may be disciplined or even discharged for his/her use of medical marijuana if he/she violates an employer’s drug policy. Furthermore, Ohio’s medical marijuana law does not permit an employee to sue an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking adverse employment actions against that employee as a result of medical marijuana use.

What rights does Ohio’s medical marijuana law grant to employers?

The Ohio legislature recognized the potential workplace health and safety risks associated with an employee’s use of medical marijuana. The law preserves the rights of employers to prohibit the use and possession of medical marijuana by their employees and to discharge employees for using medical marijuana if such use violates the employer’s anti-drug policies, even if an employee is legally exercising his or her right to use marijuana for a medical condition.

An employer has many rights and very few obligations regarding the use of medical marijuana by its employees. Ohio’s medical marijuana law allows an employer to:

  • Refuse to accommodate an employee’s use or possession of medical marijuana;
  • Refuse to hire a potential employee who uses medical marijuana;
  • Apply its existing substance abuse policies to the use and possession of medical marijuana;
  • Establish and enforce new drug-testing, drug-free workplace, or zero-tolerance drug policies to expressly prohibit the use of medical marijuana;
  • Discharge, discipline, or otherwise take adverse employment action against an employee for his/her use or possession of medical marijuana; and
  • Disqualify an employee from receiving unemployment compensation benefits if the employee was discharged for using medical marijuana in violation of the employer’s drug policy.

Ultimately, a drug-free workplace policy is unaffected by Ohio’s medical marijuana law.

What are the best practices for an employer to handle an employee’s medical marijuana use?

An employer who wants to prevent its employees from using medical marijuana is encouraged to add language to the existing drug policies to clarify that the use, possession, or distribution of medical marijuana is prohibited and will result in corrective action, as is the case with recreational marijuana and other controlled substances. Any employee who is discharged because their medical marijuana use puts them in violation of an employer’s drug policy will be considered to have been discharged for just cause.

On the other hand, Ohio’s medical marijuana law gives employers the flexibility to adopt drug policy exceptions for lawful and offsite use of medical marijuana by employees. Employers are encouraged to review and revise their existing drug policies to include such an exception if, as a practical business matter, they wish to allow their employees to use medical marijuana for lawful purposes.

Contact the Health Care Practice Group at Brouse McDowell if you have any questions or want to learn more. Click here to read past issues of Compliance Checkup.