Marijuana in the workplace

What employers and employees should know about the new Ohio law

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Q: What kind of marijuana use has Ohio legalized?
A: On June 8, Governor John Kasich signed legislation legalizing the use of medical marijuana in certain forms for certain medical conditions. There is no Ohio law legalizing marijuana for recreational use.
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Q: When does the medical marijuana law become effective?
A: Technically, the new law takes effect Sept. 6, however, before any medical marijuana can be bought or used, Ohio must first establish the Medical Marijuana Control Program (MMCP).
The MMCP will oversee licensing of marijuana cultivators, processors and testing facilities. Establishing the MMCP and making it operational may take up to two years.
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Q: What does the medical marijuana law allow?
A: The new law allows patients suffering from one or more of approximately 20 qualifying medical conditions (including HIV/AIDS, epilepsy, cancer, PTSD, etc.) to use medical marijuana.
The law only allows medical marijuana to be dispensed to patients or caregivers who are registered with Ohio and who possess an Ohio-issued patient or caregiver identification card.
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Q: How can I register in Ohio as a patient or caregiver, and how can I obtain an ID card?
A: You must wait for the state’s Department of Commerce and the Ohio Board of Pharmacy to develop rules for obtaining an ID card and for the registration of patients and caregivers.
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Q: What forms of medical marijuana can be dispensed and used?
A: Oils, tinctures, plant material, edibles (food containing THC) and patches may be dispensed. Vaporization of medical marijuana is permitted, but smoking and combustion of medical marijuana are not authorized.
Any retailer who properly obtains a license from the Ohio Board of Pharmacy may dispense medical marijuana.
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Q: Is marijuana still illegal under federal law?
A: Yes, marijuana is a “Schedule I” controlled substance under the federal Controlled Substance Act [21 U.S.C. ß 802(16)]. It is also illegal for physicians to prescribe Schedule I controlled substances.
Ohioans who use medical marijuana have no protection against the consequences for violating federal law. Under current federal law, possession of marijuana for a first offense (misdemeanor) is punishable by incarceration for up to one year in jail and a maximum fine of $1,000.
Subsequent violations carry higher fines and additional incarceration. But, for several years now, the federal government has purposely avoided enforcement of these types of “low level” violations as it watches the legalized marijuana movement unfold at the state level.
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Q: Can Ohio employers still enforce drug testing and drug-free workplaces with zero-tolerance policies against medical marijuana users?
A: Yes. Under Ohio’s medical marijuana law, employers need not accommodate an employee’s use, possession or distribution of medical marijuana.
Employers can discharge, discipline, refuse to hire, and take any other adverse employment action against an employee because of the employee’s use, possession or distribution of medical marijuana.
This law does not provide relief or protection to employees who use medical marijuana. Therefore, if their employer maintains a zero-tolerance policy, medical marijuana users will be faced with a choice of not using medical marijuana or working elsewhere with an employer who does not maintain a zero-tolerance policy.
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Q: What is the “take away” for Ohio employers concerning Ohio’s new medical marijuana law?
A: After the law becomes effective in September 2016, Ohio employers may begin to see more applicants and employees who are using, or who claim to be using, medical marijuana for medical purposes. But until Ohio’s MMCP is formed and operational, any such use would not be legal under Ohio law.
An Ohio employer who wishes to maintain a zero-tolerance policy should review the company’s drug-free workplace policy.
The policy should clearly state that marijuana is an illegal drug under federal law, and that the employer prohibits its employees from using any form of marijuana for any purpose, including for medical use, even if allowed under state law.
The policy should also prohibit illegal drug use, regardless of where or when the use occurs, instead of prohibiting illegal drugs “only at work,” “during work hours” or “on the premises.”
Finally, the policy should define illegal drugs to include all drugs that are illegal under “federal, state or local law.”

(This information was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorneys Kevin E. Griffith and Julia R. Baxter. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek the advice of a licensed attorney.)

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