October 7, 2018
As with many other states, Ohio now permits its citizens to consume marijuana legally if it is validly prescribed by a physician for a medical condition. The question arises as to whether this has any implications for employment. Are employees who use medically prescribed marijuana protected from discharge for their marijuana usage? Are employers still permitted to have and enforce a “drug-free workplace” policy if it prohibits the consumption of legal, medically prescribed marijuana?
The legislation establishing Ohio’s medical marijuana law expressly protects employers in several ways. Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. They may refuse to hire an individual due to his or her use, possession, or distribution of medical marijuana, and may discharge or otherwise discipline an existing employee for such use, possession, or distribution.
Employers may also establish or maintain a formal drug-free workplace program. And an employer may still discharge an employee for “just cause” if the employee uses medical marijuana in violation of the employer’s drug-free workplace policy. Moreover, the employee will be ineligible for unemployment compensation if the termination resulted from a violation of the employer’s drug-free workplace policy.
The administrator of workers’ compensation may still grant rebates and discounts on premium rates to employers that participate in a drug-free workplace program, and an employer maintains the right to defend against workers’ compensation claims where use of medical marijuana contributes to or results in injury.
Employers and employees should be aware, however, that the usage of medically prescribed marijuana can intersect with federal and state laws that prohibit disability discrimination, and that require employers to reasonably accommodate employee disabilities. If an employee uses medically prescribed marijuana as a result of having a disability, an employer considering an adverse employment action against such an employee must make it clear that the action is based on the employee’s marijuana usage, and not on the underlying disability that led to that usage.
This can be a very tricky area for employers and employees to navigate. If you have questions about a particular situation, or need help in crafting an appropriate employment policy, it is important to seek the guidance of a qualified employment attorney. And be careful out there!