An HR Perspective: Medical Marijuana and How it Affects Employers Somany Pich, Human Resources Consultant, Clemans Nelson & Associates; and Brian D. Butcher, VP/Chief Operations Officer, Clemans Nelson & Associates Overview of the Law Ohio's new medical marijuana law allows people with qualifying medical conditions to purchase and use medical marijuana with the recommendation of a physician. The law prevents those who are legally prescribed medical marijuana from being subject to arrest or criminal prosecution for obtaining, using or possessing medical marijuana and having accompanying paraphernalia related to its use. 1 The law allows for the use of marijuana as an oil, edible, plant material, tinctures, patches and vapor; however, the law does not permit marijuana to be smoked. Although Ohio law permits the use of medical marijuana, it remains an illegal, Schedule I, substance under federal law. 2 Medical marijuana means marijuana that is cultivated, processed, dispensed, tested, possessed, or used for a medical purpose. 3 Qualifying medical conditions include but are not limited to acquired immune deficiency syndrome (AIDS), Alzheimer s disease, cancer, Crohn's disease, epilepsy or another seizure disorder, hepatitis C, pain that is either chronic or severe, post-traumatic stress disorder, etc. 4 Although several state governments have chosen to move towards removing restrictions on the use of medical marijuana, the United States Food and Drug Administration (FDA) has not approved marijuana as a safe and effective drug for any condition. The FDA's approval process regarding the safety and effectiveness of drugs for intended conditions ensures that drugs meet 1. Kathryn Harvey. Protecting Medical Marijuana Users in the Workplace. 66 Case W. Res. L. Rev. 209. (2015). 2. Ohio Rev. Code 3796.22: Rights of Registered Patient 3. Ohio Rev. Code 3796.06: Forms of Medical Marijuana 4. Ohio Rev. Code 3796.22: Rights of Registered Patient {7/26/2017 00195921.DOCX }1
appropriate quality standards; in the case of marijuana, the FDA's lack of approval results from the considerable variances in purity and potency that accompanies varying strains of marijuana. 5 New Medical Marijuana Law Effect on Employers According to Ohio's new law, employers may establish and enforce a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy. 6 As the law still allows for employers to drug test and enforce their drug-free workplace policies, employers are required to comply with state requirements under drug testing policies. 7 The issues revolving around medical marijuana use are that it does not accurately measure when an employee was last impaired or last used the substance. Therefore, managers and supervisors should be trained on accurately detecting the impairment of medical marijuana. Nothing in the law requires that an employer permit or accommodate an employee's use, possession, or distribution of medical marijuana. Additionally, nothing in the law prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's use, possession, or distribution of medical marijuana. 8 The law does not permit a person to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana. 9 A person who is discharged from employment because medical marijuana use is in violation of an employer's drug-free workplace 5. FDA and Marijuana: Questions and Answers. U.S. FOOD & DRUG ADMINISTRATION. (Jun. 30, 2017). https://www.fda.gov/newsevents/publichealthfocus/ucm421168.htm#fdarole. 6. Ohio Rev. Code 3796.28: Rights of Employer 7. Sarah J. Moore. 5 things employers should know about Ohio's medical marijuana law. THE OHIO STATE BAR ASSOCIATION. (July, 2017). https://www.ohiobar.org/newsandpublications/news/osbanews/pages/5-things-employers-should-know-about-ohios-medical-marijuanalaw.aspx. 8. Ohio Rev. Code 3796.28: Rights of Employer 9. Ohio Rev. Code 3796.28: Rights of Employer {7/26/2017 00195921.DOCX }2
policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana shall be considered to have been discharged for just cause. 10 In turn, under statutory law, the employee would be ineligible to collect unemployment benefits. Employers currently do not have an obligation under the Family Medical Leave Act (FMLA) to provide employees with leave for treatment associated with medical marijuana. The law does not require employers to provide accommodations to employees who use medical marijuana as a result of a qualifying disability. The Effect on Worker's Compensation: Employers may still obtain Workers' Compensation premium discounts and rebates for their participation in the state's drug-free workplace program through the Ohio Bureau of Workers' Compensation (BWC). 11 On the other hand, employers who choose to accommodate employee use of medical marijuana may affect any rebates or discounts they receive from the BWC. Under the eligibility requirements of an employee who applies for Worker's Compensation, the employee may be deemed ineligible for benefits if the employee was under the influence of marijuana at the time of the injury and the use of marijuana was a cause of the injury. 12 In the eyes of the law, marijuana use is covered under a rebuttable presumption and the employee would only be eligible through a clear demonstration that the medical marijuana use was not a factor of the resulting injury. 13 The BWC provides reimbursement for drugs that are FDA approved and marijuana is not 10. Kathryn J. Russo. Ohio's Employer-Friendly Medical Marijuana Law Takes Effect September 6, 2016. JACKSON LEWIS PC. (Aug. 10, 2016). 11. Medical Marijuana and its Impact on BWC. OHIO BUREAU OF WORKERS' COMPENSATION. (July, 2017). 12.Medical Marijuana and its Impact on BWC. OHIO BUREAU OF WORKERS' COMPENSATION. (July, 2017). 13.Medical Marijuana and its Impact on BWC. OHIO BUREAU OF WORKERS' COMPENSATION. (July, 2017). {7/26/2017 00195921.DOCX }3
approved by the FDA. Also, the BWC is limited by Ohio administrative code and statute as to what medications are reimbursable for injured workers; currently, medical marijuana is not on the list of medications approved for reimbursement by the BWC. 14 Ramifications under the American's with Disabilities Act: Under the American's with Disabilities Act (ADA), employers are required to provide reasonable accommodations to employees with qualifying disabilities and disabled persons are protected from discrimination in the workplace for the use of legally prescribed drugs. 15 However, the ADA does not extend protection to users of illegal substances. Marijuana remains an illegal substance under federal law as it is still classified as a Schedule I substance. Schedule I controlled substances are completely prohibited and places marijuana under the same classification of drugs as heroin and ecstasy. 16 With marijuana's classification as a Schedule I controlled substance; the ADA does not extend protection to medical marijuana users. Looking Forward Although Ohio law will permit the use of medical marijuana for those with qualifying medical conditions, employers should take a clear approach to review and update their drug policies to incorporate medical marijuana. Ohio's new medical marijuana law provides employers with the option to accommodate employee use of medical marijuana; however, the choice to deny employee use is not a violation of the ADA and does not provide obligation under FMLA. Employers who choose to enforce drug-free and zero-tolerance drug policies should explicitly address medical marijuana in its policies. Employers should take a clear stance on 14.Medical Marijuana and its Impact on BWC. OHIO BUREAU OF WORKERS' COMPENSATION. (July, 2017). 15. Facts About the Americans with Disabilities Act. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. https://www.eeoc.gov/eeoc/publications/fs-ada.cfm. 16. Drug Classifications. FINDLAW. (2017). http://criminal.findlaw.com/criminal-charges/drug-classifications.html. {7/26/2017 00195921.DOCX }4
whether or not they will permit its usage. If not, they should then make it clear in their drug policies that medical marijuana usage will be prohibited in the workplace and any violation of the work policy will or could lead to disciplinary action. Employers need to be sure to explicitly state that violations of the drug-free, zero-tolerance drug policy can result in appropriate disciplinary action leading up to and including discharge. Employer policies should make it clear that although Ohio has legalized the use of medical marijuana, marijuana usage is still illegal under federal law and in turn, remains prohibited under the employer policy. Employers should be explicit in how they intend to address issues that arise from violations of employer policies and provide training to help educate employees on new or updated policies. Employers should also keep an eye out for potential updated legislation revolving around the push for the Drug Enforcement Agency (DEA) to reclassify marijuana under a different class of drug. Most notably, H.R. 715 Compassionate Access Act calls for the rescheduling of marijuana and medical marijuana introduced in the House of Representatives on January 27 th, 2017 and H.R. 2020 To provide for the rescheduling of marijuana into schedule III of the Controlled Substances Act introduced in the House of Representatives on April 6 th, 2017. Currently, as a Schedule I substance, marijuana is regarded as having no medicinal value and has a high potential for abuse. However, if the DEA moves its position to reclassify marijuana as a Schedule II or Schedule III controlled substance, it would become acceptable for medical uses with a legal prescription. In the event that marijuana does get reclassified under a different class of controlled substance, employers may be required to provide appropriate accommodations for medical marijuana use under the ADA. Additionally, this may cause an obligation under the Family Medical Leave Act (FMLA) to provide employees with leave related to medical marijuana use or treatment. {7/26/2017 00195921.DOCX }5