An Employer’s Q&A to Marijuana in Ohio

On January 16, 2019, Ohio’s Medical Marijuana Control Program formally launched with the official opening of the first dispensaries in Wintersville, Canton, and Sandusky. Years in the making, Ohio’s program provides alternative medical treatment to qualifying patients but also raises serious questions for employers on how to deal with employees who qualify for use. Conflicting federal and state laws, as well as concerns about how to remain compliant in the face of an evolving regulatory landscape, should be of the utmost concern to every Ohio business owner. With medical marijuana firmly in place in Ohio, here are the top questions employers may have:

Are employers required to accommodate medical marijuana use?

Ohio’s Medical Marijuana Control Program does not require employers to accommodate employees who use medical marijuana, and employers are free to treat it as they choose.

Can employers still make employment decisions based on marijuana use?

Employers have discretion with regard to employees’ medical marijuana use and can hire, discharge, move, make tenure decisions, or demote employees based on its use. Employers should avoid making decisions that conflict with company policy if they do decide to accommodate medical marijuana use, however, under the Drug-Free Workplace Act employers are required to maintain a drug-free workplace as a condition of contracting with the federal government.

Does the Ohio Medical Marijuana Control Program affect the employer’s ability to provide a drug test?

In general, companies are permitted to maintain a drug-free workplace.  Employers may still provide drug tests to employees, and make employment decisions based on the results. Employers should conduct drug tests in accordance with standard operating procedure, and avoid singling out employees to provide the appearance of disparate treatment. If a business decides to alter its official policy on marijuana prohibition or accommodation, the changes should be made through proper chain-of-command in accordance with standard operating procedures for amending company bylaws.

Can employees claim protected medical marijuana use under the Americans with Disabilities Act (“ADA”)?

Medical marijuana, while legal for qualifying individuals in the state of Ohio, is illegal under federal law and is not protected under the ADA. As such, employers are not required to accommodate its use. The employee’s underlying medical condition is likely to be covered, however, so employers should make any subsequent employment decisions in accordance with standing company policy.

Does the federal Controlled Substances Act (“CSA”) prevent employers from hiring medical marijuana patients?

While marijuana in all forms is illegal federally, the Controlled Substances Act does not prohibit Ohio employers from hiring qualifying medical marijuana patients.

However, under the Drug-Free Workplace Act, employers who contract with the federal government, or receive grants from the federal government, must establish a drug-free workplace policy and may not accommodate medical marijuana use.  Notwithstanding the foregoing, the Drug-Free Workplace does not technically mandate that employers drug test applicants or employees.

Can an employee sue or maintain a cause of action against an employer if the employee suffers an adverse employment action because of the employee’s medical marijuana use?

Ohio law expressly states that an employer is not subject to suit if an employee suffers an adverse employment action based on medical marijuana use, as long as the decision was made based in accordance with company policy. Employers should take care to avoid firing an employee in a manner out-of-step with existing protocol as this may form the basis for retaliation action. As a best practice, HR departments should reiterate existing company policy on medical marijuana use to employees, and make them aware of any changes that may follow.

What happens if an employer catches an employee using medical marijuana?

Any action taken by an employer who finds an employee using medical marijuana depends on company policy, and where the encounter takes place. If an employer finds an employee using medical marijuana during off-hours, and company policy accommodates its use, for example, then no action needs to be taken. As a general matter, employers who accommodate employees using medical marijuana should prohibit its use during work hours or on company property (including the parking lot).

If an employee is fired for medical marijuana use, what happens to that employee’s benefits?

Employers should avoid firing an employee for medical marijuana if official company policy permits its use or if they have verbally told employees they will accommodate it. However, if an employer prohibits medical marijuana and fires an employee for its use, Ohio law provides the employee will be discharged for “just cause.” As such, if an employer does not accommodate medical marijuana and an employee is fired for its use, the employee is generally not eligible for benefits or severance. Also, employees fired for medical marijuana use are likely barred from receiving employment benefits.

What if I want to accommodate an employee’s medical marijuana use?

Employers should create strict procedures and guidelines. Employers may choose to have an occupational specialist perform a verification assessment, and they may want to work with the employee’s doctor to determine reasonable accommodations. Employers should consider modifying the duties of medical marijuana users in safety-sensitive positions.

How will this affect my liability insurance?

Because insurance policies are contracts, your rights and obligations depend on the language in your policy. In general, insurance companies are unlikely to cover any accidents or damage caused by an employee who was under the influence of a federally controlled substance such as marijuana at the time of an accident. Additionally, injuries resulting from an employee’s use of medical marijuana are generally not eligible for workers’ compensation or other state benefits.

Employers who accommodate medical marijuana should be sure to review drug-testing policies in light of their insurance policies. Marijuana can stay in an individual’s system for an extended period of time, so a drug test can produce a positive result even if the employee has not used medical marijuana for several days. If your procedures mandate drug testing following an accident, then an employee who tests positive may be denied coverage even if they were not under the influence at the time of the accident.

What about Delta-8?

When entities discuss “THC,” they are typically referring to a specific cannabinoid known as “Delta-9 THC.” Delta-9 is the cannabinoid most commonly associated with the psychoactive effects of the cannabis plant and remains federally illegal per the Controlled Substances Act. However, as of late, many retailers in Ohio and throughout the nation have begun offering a similar but distinct part of the cannabis plant labeled as “Delta-8 THC.”

Following passage of the 2018 Farm Bill, hemp containing .3% or less (Delta-9) THC and hemp-derived CBD became Federally legal. As a result, cultivators began processing and isolating specific hemp-derived novel cannabinoids for sale. Delta-8 THC, which has gained increasing popularity and traction in retail environments over the past year, is one such cannabinoid.

Like Delta-9 THC, Delta-8 produces an intoxicating effect in users. However, early research suggests that the effects of Delta-8 are not as intense or powerful as those typically attributed to Delta-9. Delta-8 may also be processed similarly to other cannabinoids and can be placed into a variety of products such as flower or plant material, oils and tinctures, or edibles.

Products containing Delta-8 are legal at the state and Federal level so long as they contain .3% or less Delta-9 THC. However, consumers should be aware Delta-8 products are typically sold in non-licensed novelty shops and are not subject to the same stringent health and safety requirements as other cannabis products in Ohio.

Employers may still make employment decisions on the basis of an employee’s Delta-8 THC usage. However, because Delta-8 is federally legal, employers should ensure their policies and procedures are clear regarding use of Delta-8 and the potential ramifications employees may face for its use.

With the passage of Issue 2, is all cannabis legal in Ohio now? What does this mean for Employers?

Despite Ohio voters passing Issue 2 in November, 2023, recreational or “non-medical” sales are not expected to begin until around September, 2024. In addition, the Ohio Legislature is undertaking efforts to potentially modify the language of Issue 2 via statute, which could substantially affect consumer and employer rights down the road. However, as of Issue 2’s December 7, 2023 effective date, it is indeed now legal for Ohio citizens to possess and consume cannabis recreationally, or “non-medically.”

While the law is in flux and may change, employers are still permitted to make employment decisions based on an employee’s non-medical cannabis usage, similar to the discretion allowed with regard to an employee’s medical cannabis usage. This means employers can hire, fire, promote, demote, or make other employment determinations based on an employee’s use of non-medical cannabis.

Generally speaking, employers do not need to contend with issues such as the Americans with Disabilities Act with respect to non-medical cannabis usage.

Even so, employers must now ensure that their cannabis use policy addresses non-medical cannabis usage. Employers should carefully review their internal policies and procedures, drug-testing policies, insurance procedures, and vendor contracts, to ensure they are operating in compliance with all legal and third-party requirements.

Note: Marijuana is illegal federally. This information is intended to provide a general overview and should not be construed as legal advice. Employers should consult an attorney before adopting company policies or make employment decisions on the basis of medical marijuana usage.

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