The Ohio medical marijuana law is set to be fully operational in September, 2018. Ohio employers may soon face scenarios like this one: Employee Jane Doe is a shipping/receiving clerk. The Company depends upon her work to be timely, accurate and efficient. Jane also suffers from post traumatic stress and has just obtained a medical marijuana user license as part of her treatment. She is selected for a random drug test, and tests positive for marijuana. But, she has a legal right under Ohio law to possess and use marijuana for her medical condition. Must the employer accommodate her usage as you would a disability under state and federal law? Must the employer tolerate Jane being under the influence in the workplace? Must the employer make an exception to its zero tolerance drug and alcohol policy?
Unlike other states with medical marijuana laws, Ohio’s law does have some clear rules in this case. Under Ohio law, nothing prevents an employer in Ohio from “establishing and enforcing” a zero tolerance policy to employees with medical marijuana licenses. An employee may be disciplined or terminated upon testing positive for medical marijuana in the workplace. Unlike some states, Ohio law doesn’t distinguish between those in safety sensitive positions and those who are not. Nor does the law distinguish between those who exhibit outward signs of impairment, and those who don’t. Zero tolerance can really mean zero tolerance.
But the Ohio law seems to go even further than that. Ohio’s law expressly permits an employer to refuse to hire or terminate an employee who possesses a license, solely because they possess a license – whether or not they have ever had marijuana in their system while at work. Even more, the law seems to allows similar action against someone who merely possesses a “caregiver” license. That means someone who has the legal right merely to possess (but not use) limited quantities in connection with the care of another. A caregiver may apparently be fired from their job for that reason alone. The law permits this action even if the caregiver has never brought the substance into the workplace. The Ohio law also provides a kind of legal immunity to employers who take adverse action on account of medical marijuana.
Ohio employers will have to decide how far to enforce their anti-drug policies in light of this new reality. It may be that some will choose to treat medical marijuana like they currently treat prescription medication with potential mind-altering properties. Perhaps, some will choose to limit their prohibitions to medical marijuana users in sensitive positions. In the end, the law seems designed to give employers the widest possible discretion.