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Policies may need updating to clarify that the use of medical marijuana isn’t tolerated in the workplace
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The use of medical marijuana for certain illnesses will soon be legal under Ohio law, but that doesn't mean employers have to tolerate it, according to employment attorneys interviewed by SHRM Online.
"The law says very specifically that employers still have the right to have a zero-tolerance policy regarding the use of medical marijuana in the workplace and employees do not have the right to sue their employer for taking action," said Sarah Moore, an attorney with Fisher Phillips in Cleveland.In addition to Ohio, 24 other states and Washington, D.C., have laws permitting the use of medical marijuana, but the details of those state laws vary. The Ohio law is very employer-friendly, said Kathryn Russo, an attorney with Jackson Lewis in Long Island, N.Y.The trend over the last three to four years has been for these state laws to contain a workplace anti-discrimination provision, she said. The Ohio law, however, doesn't require employers to accommodate any employee use of medical marijuana. Even in states that do provide employment protections for medical marijuana users, the laws permit employers to have "no impairment" policies that prohibit employees from using marijuana, illegal drugs or alcohol at work. Employers may also have policies requiring workers who operate vehicles or machinery to provide notice if they are taking prescription or over-the-counter medication that may impair their job performance.
Employees can still be terminated under the new Ohio law even if they are using marijuana off-duty and are in compliance with the statute, said Kevin Griffith, an attorney with Littler in Columbus, Ohio. However, employers that want to maintain a zero-tolerance policy should consider amending their policy to make it clear that, even though Ohio law permits the use of medical marijuana, it isn't tolerated in the workplace, Griffith said.Although Ohio employers will retain the right to prohibit marijuana use, there is still value in approaching employee discipline very carefully, Moore noted. This is because the conditions for which medical marijuana will be permitted are all covered by the Americans with Disabilities Act. The new law will permit the use of marijuana by patients who suffer from certain medical conditions, including HIV/AIDS, epilepsy, cancer and post-traumatic stress disorder.If an employer is considering firing someone with one of these conditions for using medical marijuana, the company should have a plan for responding to social media and public reactions without running afoul of any privacy concerns, she said.
No Distribution Yet
Patients with qualifying medical conditions or their caregivers must register with the state and receive a patient identification card to be eligible to use marijuana under the Ohio law.An interesting point about the law is that it doesn't allow smoking of marijuana, Russo noted. It allows the use of marijuana in the form of oils, edibles, tinctures or vapor.Although the law is scheduled to take effect in September, "there isn't going to be a medical marijuana industry in Ohio for at least a year or two," Griffith said. The law gives the state department of commerce and the board of pharmacy a year to establish standards and procedures for the Medical Marijuana Control Program, Griffith explained. Marijuana can't be sold until certain processes for regulating—as well as the regulating body—are created, so it may be a year or longer before the program is up and running.
Federal Ban Remains
"The state law doesn't give Ohioans any immunity from the federal controlled substances laws," Griffith noted. "Anyone who decides to use medical marijuana in Ohio does so at their own risk in light of federal criminal laws," he said. However, this likely isn't a significant risk because the federal government has so far taken a hands-off approach in states with these laws—though that doesn't mean it won't ever decide to take enforcement measures.Moore mentioned that the Drug Enforcement Administration and the Department of Justice have been considering downgrading marijuana from a schedule one to a schedule three drug. Schedule one drugs include heroine and peyote, schedule two drugs include cocaine and oxycodone, and schedule three drugs are "drugs with a moderate to low potential for physical and psychological dependence," such as Tylenol with codeine and anabolic steroids. If marijuana is changed to a schedule three drug, "that might change the game for employers," Moore said. For now, however, everything remains the same for Ohio employers except that they should update their zero-tolerance policy to specifically address the medical marijuana law.
"Employers need to recognize that each state stands on its own with regard to marijuana use," Moore said."They shouldn't assume that the Ohio framework will be the same as medical marijuana laws in other states," she said. "It's a state-by-state analysis.""Ohio is very employer-friendly, even with this law, but other states are not," Russo said. "Some of the newer marijuana laws include express anti-retaliation language, and in those states it's a very delicate issue for employers."In New York, Russo said, doctor-prescribed medical marijuana use is covered under the state's disability and reasonable accommodation laws.Employers need to proceed a little more cautiously in states with these provisions, she said. The most important thing to do is look at job duties. If employees are doing something with the potential for significant danger, such as operating a vehicle or forklift, an employer may not want to take the chance of having a marijuana user in those kinds of jobs. However, employees who work office jobs and use marijuana may not present as much of a danger in the workplace.Large employers that operate in multiple states may feel it's too burdensome to have many different marijuana policies, Russo said. They still have a choice to say, "Marijuana is illegal under federal law, and we follow federal law."
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