Medical Marijuana, Employers, and Drug Policies
Ohio, like most states, has a law (O.R.C. 3796 et. seq.) permitting the use of medical marijuana. Ohio’s medical marijuana program was set to be fully operational as of September 8, 2018; however, the program was plagued by a number of setbacks and is only now getting started. This is likely good news for employers, who should take this extra time to ensure they understand how the law stands to impact their workplace and employment practices.
Courts have dealt with the issue of whether medical marijuana use is protected by the Americans with Disabilities Act (ADA). In James v. City of Costa Mesa (2012), the Ninth Circuit found that although the medical marijuana users were gravely ill, the ADA provided no protections. The court concluded that the ADA does not apply to drugs, such as marijuana, that are banned under the Controlled Substance Act.
Ohio Law (O.R.C. § 3796.28)
Ohio employers are fortunate because the state’s medical marijuana law includes several employer-friendly provisions. Specifically, the law states that nothing in this chapter:
- Requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
- Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person because of that person’s use, possession, or distribution of medical marijuana;
- Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.
Because of these explicit carve-outs, Ohio employers likely will not be adversely impacted by the medical marijuana law. Employers can continue to enforce their drug testing policies and discipline employees who use, distribute, or possess medical marijuana. Likewise, employers do not have to accommodate an employee’s use of medical marijuana.
While Ohio’s medical marijuana law contains employer-friendly provisions, other states are much more protective of employee use of medical marijuana, making it critical for employers to be aware of the specific laws in their state. Connecticut, for example, prohibits employers from refusing to hire a person or discharging, penalizing, or threatening an employee solely on the basis of such person’s status as a qualified medical marijuana user. This anti-discrimination language gives increased protections to employees who use medical marijuana.
In a recent Connecticut decision, Noffsinger v. SSC Niantic Operating Company, LLC (2018), a prospective employee was recommended medical marijuana by a physician to minimize the complications associated with post-traumatic stress disorder. Despite being aware of the prospective employee’s use of medical marijuana, the employer rescinded its job offer when the prospective employee tested positive for marijuana. The prospective employee filed suit alleging discrimination in violation of Connecticut’s medical marijuana law. The employer argued that it did not discriminate because of an exception to Connecticut’s law which permits discrimination “required by federal law or required to obtain federal funding.” However, the court held that no federal law required a zero-tolerance drug testing policy, and the employer discriminated by rescinding the job offer after the failed drug test.
A Massachusetts court also provided employees who use medical marijuana extensive protections. In Barbuto v. Advantage Sales and Marketing (2017), Cristina Barbuto accepted a job offer contingent upon her passing a drug test. Barbuto suffered from Crohn’s disease and was recommended medical marijuana to combat the side effects. Barbuto explained to her new employer that she would test positive for marijuana, but the supervisor said this should not be a problem. As expected, Barbuto failed the drug test and was terminated after her first day on the job. The employer argued that it was following federal law prohibiting the use of marijuana. The court rejected this argument and instead focused on Barbuto’s disability. Since Crohn’s disease is a disability under Massachusetts disability law, the employer had a duty to engage in the interactive process with Barbuto to determine if there was a reasonable accommodation to help her perform the job.
Ohio’s medical marijuana law contains carve-outs so that employers can continue to enforce their drug testing policies. Still, it is important to keep in mind that other states have medical marijuana laws or disability laws that protect medical marijuana users. Recently, there has also been a growing national trend among employers to not test for marijuana use. Their employers cite the need to attract skilled workers and the disparities among state legalization as reasons for cutting back on marijuana testing.
Employers with questions about Ohio’s medical marijuana law, as well as medical marijuana programs in other states, should contract Brice Smallwood (513.651.6751; firstname.lastname@example.org) of Frost Brown Todd’s Labor and Employment practice group.
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Thomas D. Anthony is the former chair of FBT's Health Care Industry Team. He focuses on counseling health care entities on corporate transactions, regulatory compliance and joint ventures.