Ohio Governor Kasich’s presidential campaign went up in smoke. So did his opposition to marijuana legalization in the medical context when he recently signed into law Ohio’s Medical Marijuana Act (“OMMA”). He went from unartfully quibbling with Stephen Colbert about marijuana’s “problem” despite seemingly not being harmed by his own admitted usee to making Ohio the 26th state to enact medical-marijuana legislation. (To read more about the medical marijuana laws in Pennsylvania, New York, Connecticut, and New Jersey, please see our articles here and here). But there is no smoke or fire in OMMA, both literally in the sense that smoking remains a banned form of consumption, and metaphorically for employers who wish to continue to treat marijuana as a banned substance in the workplace.
OMMA goes into effect in early September. Under the law, individuals diagnosed with a “qualifying medical condition,” who have registered with the State Board of Pharmacy are permitted to use certain forms of medical marijuana for medicinal purposes. As mentioned above, do not expect Harold and Kumar to have smoke billowing from their car at a White Castle drive-thru any time soon though, as OMMA explicitly prohibits smoking or other combustion of pot. Rather, patients are only permitted to use oils, tinctures, plant materials, edibles, patches, or any other form approved by the State Board of Pharmacy, including vaporization.
Employers May Continue to Harsh Employees’ Mellow
The “no, no, no, don’t smoke it no more” angle is not the only way in which the Buckeye State’s Governor and legislature tried to avoid the ubiquitous buckeye-leaf symbol being mistaken for cannabis, as happened here. Most germane for employers, Ohio did not deviate from an agenda of keeping marijuana out of the workplace and protecting employers who prohibit drug-use among their employees. OMMA contains a number of significant protections for employers who share this agenda:
- Employers are not required to accommodate or permit “an employee’s use possession, or distribution of medical marijuana.”
- Employers may discharge, discipline, or take other adverse employment action against a current or prospective employee, including refusal to hire, because of that individual’s “use, possession, or distribution of medical marijuana.”
- Employers may establish and enforce drug-testing policies, drug-free workplace policies, or zero-tolerance drug policies.
- OMMA is not meant to interfere with “any federal restrictions on employment, including regulations adopted by the United States department of transportation…”
- OMMA does not permit a current or prospective employee to “commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, or 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.”
- Employees who are discharged from employment because of their use of medical marijuana “shall be considered to have been discharged for just cause … if the person’s use of medical marijuana was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.”
Thus, not only are employees left without a cause of action for medical marijuana-related discrimination, but employers do not have to accommodate medical marijuana users as if they had a disability. In this respect, Ohio differs from states like New York, where being a certified patient is arguably tantamount to a protected disability under state law (while still raising numerous federal and inter-state complications).
Next Steps for Employers
Given that OMMA will take effect in less than three months, employers determined to maintain pot-free workplaces should strengthen or institute policies that include marijuana among the drugs for which testing is mandated and on-the-job use prohibited. In administrating such policies, employers should take care not to violate privacy rights by divulging any personal medical information of the employee to supervisors or other employees. For this reason, Human Resources, rather than line management, should probably handle discipline and other communications with employees regarding their purported use of medical marijuana.
If you have any questions or concerns, please contact your local Seyfarth Shaw attorney. Loren Gesinsky (firstname.lastname@example.org) is a partner in the New York office who still has deep ties to his native Buckeye State. Samuel Sverdlov (email@example.com) and Meredith-Anne Berger (firstname.lastname@example.org) are associates in the New York office.