BuckHigh State: Medical marijuana bill passes in Ohio, but there is a catch. What does it all mean for users and employers?

Issue 3’s crushing failure in the fall of 2015 hinted Ohio was years away from legalizing any kind of marijuana use. However, despite Issue 3’s results, public opinion polls revealed overwhelming support (roughly 90%) for medical marijuana use for certain individuals in the Buckeye state. Just months later, House Bill 523 was introduced and eventually cleared the Ohio Senate with a bipartisan 18-15 vote in support of a strict regulated medical marijuana program. On June 8, 2016, Gov. John Kasich signed the legislation into law, but potential patients must wait 90 days (September 6, 2016) for the law to take effect.

But questions remain to be answered on this strictly regulated law- Who can use medical marijuana? How can you use it? When and where can you buy it? And most importantly, why is this important to Ohio employers?

Who can use?
Only individuals with qualifying medical conditions are permitted to use marijuana. Qualifying medical conditions include:

• Acquired immune deficiency syndrome
• Alzheimer’s disease
• Amyotrophic lateral sclerosis
• Cancer
• Chronic traumatic encephalopathy
• Chron’s disease
• Epilepsy or another seizure disorder
• Fibromyalgia
• Glaucoma
• Hepatitis C
• Inflammatory bowel disease
• Multiple sclerosis
• Pain that is chronic and severe, or intractable
• Parkinson’s disease
• Positive for HIV
• Post-traumatic stress disorder
• Sickle cell anemia
• Spinal cord disease/injury
• Tourette’s syndrome
• Traumatic brain injury
• Ulcerative colitis
• Any other disease or condition added by the state medical board

Who can grow?
No one is permitted to grow marijuana at home or for personal use. You must apply with the Ohio Department of Commerce to be eligible to grow medical marijuana commercially. Marijuana growth is prohibited within 500 feet of a school, church, public park, library, or public playground. Individuals with criminal convictions may be disqualified from growing, depending on the conviction.

Who can recommend?
Physicians/Doctors that are certified by the State Medical Board of Ohio must register with the state to recommend medical marijuana use. The doctors will be required to complete at least two hours of training on medical marijuana diagnosis before being able to recommend to patients. Doctors who have financial interest in the growth of marijuana, have lost his or her license to practice medicine, or have been convicted of certain crimes may be disqualified from recommending use.

How can patients use?
Patients will not be allowed to smoke (or grow) marijuana, which is one of the main reasons why the bill was passed. Lawmakers felt smoking went against public health messages against smoking cigarettes. Patients will only be allowed to use:

• Vaporizers
• Edibles
• Oils
• Tinctures
• Patches
• Plant materials

When/Where can patients buy?
Technically, September 6th, 2016. However, the bill is mute on where to get it until dispensaries open up. Dispensaries will not be opened until at least 2017, and possibly not until 2018. Patients will be able to buy out of state at other medical marijuana friendly states, or the marijuana black market as of September 6, 2016. As long as patients have a prescription from a doctor after September 6, 2016, they will have an affirmative defense against marijuana possession under state law, regardless of how or where they got it.

Why is this important to Ohio employers?
Many people may be under the impression that employers cannot drug test their employees or potential employees now that this bill has passed. However, employers can still enforce drug-testing and drug-free workplace programs. The bill protects Ohio employers from many provisions:

• Employers are not required to permit or accommodate their employee’s use, possession, or distribution of medical marijuana;
• Employers may discharge, refuse to hire, or discipline an employee for their use, possession, or distribution of medical marijuana;
• Employers are still permitted to discharge an employee for just cause if the employee violates the employer’s drug-free workplace policy by using medical marijuana;
• If an employee violates the employer’s drug free policy and is terminated as a result, the employee will be ineligible for unemployment compensation;
• Employee’s workers’ compensation eligibility may also be affected. If an employer can show that an employee’s injuries were caused by the employee being under the influence of marijuana, an employee will likely be ineligible to receive workers’ compensation.
However, as new law is added and changed, decisions in regards to hiring, discharge, and discipline of employees over medical marijuana use may alter provisions as we know it. New issues will arise, and employers should be aware and ready for these issues to arise.

Recommendations for Ohio Employers

• Reinforce a drug-free workplace policy by setting clear guidelines for your employees. Many employees/potential employees may believe that a medical marijuana prescription will make them immune from employers’ drug-free workplace policies. Make sure your policy has clear and coherent guidelines regarding its drug policy.
• Make sure your definition for “illegal drugs” includes prohibited drugs under “federal, state, or local law.” Marijuana is still illegal under federal law, as it is defined as a Schedule I controlled substance.
• Your policy should prohibit illegal drug use, not just drug use during work hours or on the work site. Prohibiting illegal drug use regardless of when or where it occurs will help eliminate a debate of when or where drug use occurred.
• Inform your employees that this new law does not make them immune from your drug-free workplace policy. Many employees may be under the impression that their medical marijuana prescription excludes them from such policy. Make your employees aware that as long as a drug is illegal under federal law, it is prohibited under your policy.

Many people may be under the impression that House Bill 523 is a lenient medical marijuana law that is the first step into full legalization of marijuana in the state of Ohio. However, House Bill 523 is a very strict regulated law that will only be provided to qualified individuals by certified physicians. House Bill 523 is an answer to the people’s call that medical marijuana may help provide those in need with an alternative medicine. Fortunately for employers, House Bill 523 protects their rights in regards to their drug-free workplace policies.
However, as laws are altered and added, like House Bill 523, employers should keep in mind that future decisions in regards to hiring, discharge, and discipline of employees over medical marijuana use may also be affected as a result of new law. Employers should be aware of these changes in law and strengthen their drug-free workplace policies before the September 6, 2016 effective date. Strengthening your drug-free workplace policy may help prevent future law suits in regards to an employee’s medical marijuana use.
If you have question or need assistance with fashioning an appropriate policy please call our employment attorneys, Maribeth Meluch.