Employers should anticipate changes since Ohio legalized medical marijuana in 2016.

Legal marijuana is reported to be a multi-billion dollar industry in the U.S.—its growth and size are now on par with other well-established businesses. It is no wonder that Ohio has now joined at least 28 other states that have legalized some form of marijuana. The new Ohio law, signed in September 2016, stipulated that the program be ready to service Ohio residents on September 8, 2018.

So what does this mean for Ohio employers and their drug-free workplace policies?

Ohio Medical Marijuana Control Program

On September 6, 2016, Ohio legalized medical marijuana with the passage of House Bill 523. This law authorizes Ohio licensed physicians to recommend medical marijuana to individuals diagnosed with one of 20 qualifying conditions or diseases. The law strictly limits medical marijuana use to only consumable oils, edibles, patches and vaping; smoking marijuana is still prohibited.

Although the new law states that Ohio authorities will not prosecute marijuana users with a valid doctor recommendation, there is still no guarantee that users will be free from federal prosecution. This conflict between the federal law and a growing number of state laws is likely to remain a conundrum and a real risk for medical marijuana uses for the foreseeable future.

Medical Marijuana in the Workplace

Those individuals with a valid Ohio recommendation to use medical marijuana may find themselves in hot water with their Ohio employers. The new law does not require Ohio employers to change their drug-free workplace policies or carve out an exception for medical marijuana. Specifically, the new law states that Ohio employers are not required to permit or accommodate an employee’s use or possession of medical marijuana.

The statute specifically states that the new law does not prohibit an Ohio employer from refusing to hire or fire an individual who uses, possesses or distributes medical marijuana. The law actually suggests that an Ohio employer could ask potential hires or current employees if they have a right to legally use medical marijuana and then not hire or promote that employee – or later fire them – on that basis alone.

This means possible fallout from the new law could include groups of employers who could prevent medical marijuana users from getting hired anywhere in Ohio. Any such attempt by Ohio employers is likely to be challenged.

What’s Next for Ohio?

In Ohio, it is anticipated that medical marijuana distribution will start in September 2018. Ohio employers can take comfort in the fact that nothing in the new law requires a change in their drug-free workplace policies. Ohio employers still have a right ­– and are encouraged – to insist that employees maintain complete sobriety and be free from the intoxicating effects of any drug while working.

To ensure this, Ohio employers can continue conducting drug screening and testing as part of the program promoted by the Ohio Bureau of Workers Compensation. If marijuana is detected, Ohio employers may terminate an employee regardless as to whether the marijuana use is illicit or recommended medical marijuana. Ohio employers should still update their current workplace drug and alcohol policies to include the prohibited use of medical marijuana while at work.

Ohio employers also may wish to include e-cigarettes and vaping as part of their anti-smoking policy, because this is a common source of illicit marijuana use while at work. Finally, if Ohio follows the trends of other states with similar laws, Ohio employers also should brace for a rise in both illicit marijuana use at work and inebriation at work caused by off-duty use.

Ohio employers are already finding it difficult to hire employee prospects who can pass a drug test and are losing workers who fail random drug testing. Faced with this problem, some are stopping drug testing altogether. This is not recommended; employers will need to continue to recognize that drug use and abuse pose a significant threat to achieving Ohio’s economic goals.

As a partner in the Fisher Phillips Columbus office, Samuel Lillard (slillard@fisherphillips.com) focuses on general employment litigation, arbitration, and mediation. Samuel is a seasoned litigator with over 20 years of experience in representing employers in all Ohio and federal courts, as well as a number of regulatory agencies, including the Equal Employment Opportunity Commission (EEOC), the Ohio Civil Rights Commission, the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), and the Office of Unemployment Compensation.