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Medical marijuana law’s impact on the workplace
SHERRY KARABIN
Legal News Reporter
Published: August 5, 2016
Ohio’s new medical marijuana law has left many in the state with unanswered questions, ranging from when and where it will be available to what its effect will be on the workplace.
Scott Gedeon, of counsel in the Cleveland office of the labor and employment law firm Fisher Phillips, said he’s received a number of calls from employers that are concerned about whether their drug-free workplace, zero tolerance drug and alcohol and/or substance abuse policies are still valid.
“What I’ve been telling companies is that the new law will not impact existing policies or an employer’s ability to contest a workers’ compensation or unemployment claim,” said Gedeon.
“The law is basically like alcohol,” he said. “Even though it’s legal an employee cannot consume it on the job. The same will hold true for medical marijuana. An employer will not be asked to accommodate an employee who is impaired because of its use, even if the employee has a prescription for it.”
House Bill 523, which was signed into law by Gov. John Kasich on June 8, allows medical marijuana prescriptions to be written for the following conditions: Acquired Immune Deficiency Syndrome (AIDS), Alzheimer’s disease, Amyotrophic Lateral Sclerosis (ALS), cancer, Chronic Traumatic Encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia; glaucoma, Hepatitis C, inflammatory bowel disease, multiple sclerosis; pain that is either chronic and severe or intractable, Parkinson’s disease, positive status for HIV, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, ulcerative colitis and any other disease or condition added by the state medical board under section 4731.302 of the Ohio Revised Code.
Gedeon said The State of Ohio Board of Pharmacy, the State Medical Board of Ohio and the Ohio Department of Commerce have been charged with implementing various aspects of the law, with an advisory board recommending rules to the agencies.
He said the bill prohibits people from smoking medical marijuana.
Under Sec. 3796.06 of H.B. 523, the only forms of the drug that can be dispensed are oils, tinctures, plant material, edibles, patches and “any other form approved by the state board of pharmacy under section 3796.061 of the Revised Code.”
People are not allowed to grow marijuana for personal use and those looking to do so for commercial purposes must apply to the Ohio Department of Commerce, he said.
Gedeon said at this point it’s still unclear when and where patients can get their prescriptions filled.
While employers can fire workers for using prescribed medical marijuana while on duty, Gedeon advises all companies to review their workplace policies and seek legal advice if they believe changes are necessary before the law takes effect in early September.
“For now an employer’s right to protect employees trumps an individual’s right to use marijuana for medicinal purposes,” Gedeon. “While the drug could help employees in pain or suffering from nausea to be more productive, it also leads to impaired coordination and delayed decision making.”
According to Rachel Reight, an attorney at Baasten McKinley & Co, the law does little to protect the rights of workers.
“An employer can refuse to hire or fire an employee for cause due to medical marijuana use, which means that an employee cannot use the drug while on duty even if a doctor has instructed the person to do so,” said Reight, who represents employees.
“Thus the law as it’s written will provide little medicinal benefit to an employee.”
She said the law could also eliminate an employee’s workers’ compensation claim.
“The rebuttable presumption remains in place that an employee is ineligible for workers’ compensation benefits if the person was under the influence of medical marijuana deemed to be the proximate cause of the injury,” said Reight.
She said other states have built-in employee protections that are absent in the state’s new law.
“For example, there are prohibitions against discrimination that are not present in the Ohio law.”
Reight advises workers to familiarize themselves with their employer’s workplace policies and discuss those policies with their doctors.
“Physicians may need to adjust the prescription in a way that an employee can avoid its use during the workday,” said Reight. “I would anticipate revisions to the bill as there is a growing trend toward the acceptance of medical marijuana both legally and socially.
“I do not anticipate a fall ballot initiative in light of the new law. Ohioans for Medical Marijuana ended its campaign and the Marijuana Policy Project suspended its signature campaign for a fall ballot initiative. While others were cleared to collect signatures, their efforts do not appear to be garnering enough support.”
Gedeon said he would not rule out the possibility of some future changes, but said he did not expect workplace rules to be impacted.
“We live in evolving times,” he said. “However, marijuana is still a Schedule I drug, which is illegal to possess under federal law and we do not anticipate that employers will be forced to accommodate those using it under the Americans with Disabilities Act. However, this is likely to be an area of growing litigation.”
But Reight said in April the U.S. Drug Enforcement Administration (DEA) announced it would review marijuana’s classification as a Schedule I drug.
“Schedule I is reserved for drugs the DEA considers to have no ‘current acceptable medical use’ and a high potential for abuse,” Reight said. “The rescheduling would not make marijuana legal, but would result in increased access for research purposes and reduced penalties for offenses.”