Employers need to be prepared to address issues with employees regarding possession and use of medical marijuana.
What Does the Law Say?
Ohio’s medical marijuana law, passed in 2016, permits patients with any of 21 specific medical conditions to purchase, use and possess medical marijuana in various forms (including certain dried plant material, oils and edibles). Patients must register with the state Board of Pharmacy and, if the patient is under the age of 18, he or she must also have a registered caregiver to monitor his or her use of the medical marijuana.
Importantly, the law explicitly states that employers do not have to accommodate an employee’s use of medical marijuana. Medical marijuana use or possession is considered just cause for termination under the law. For the purposes of workers’ compensation, if an employee tests positive for marijuana after a workplace accident, the state presumes the marijuana was the cause of the accident, even if the employee is a registered patient. This raises the employee’s burden to receive workers’ compensation benefits.
Also, keep in mind that marijuana for any purpose, including medical use, is still prohibited by federal law. The federal government has declined to enforce many marijuana laws in states that have legalized the drug, but it remains a federal crime to possess, use or distribute marijuana for any purpose. As a result, neither the Americans with Disabilities Act nor the Family and Medical Leave Act require accommodations or leave for patients to use medical marijuana in Ohio.

Addressing Employee Use
All employers in Ohio may continue to enforce zero-tolerance drug policies and may discipline, terminate or refuse to hire anyone who uses, possesses or distributes medical marijuana. Employers may also continue to conduct drug testing on employees. In other words, the new law does not require any change in how employers currently address employee drug use. Employers that are particularly concerned or want to clarify their policies can add language to their anti-drug policies that makes clear the use of medical marijuana is also a violation.
In many instances, Ohio employers do have the option to accommodate medical marijuana use. Before doing so, however, the employer should follow certain precautions. An employer providing services to another entity should ensure that it does not run afoul of its business partner’s contractual rights or policies. For example, accommodating medical marijuana use could cause you to lose privileges at a hospital system or commit a similar misstep. Similarly, if your organization receives a workers’ compensation rebate for maintaining a drug- free workplace, you should not accommodate employees’ medical marijuana use if you want to continue receiving the rebate. Likewise, if you serve as a government contractor or subcontractor, that government contract may preclude you from accommodating medical marijuana use.
If an Ohio employer does elect to accommodate employees’ medical marijuana use, it should be careful to make clear use of the drug at work is prohibited, and must ensure that employees are not under the influence of marijuana when they are responsible for supervising employees. Employers may, however, set different parameters regarding marijuana use for different jobs (when they have the option to accommodate marijuana use as noted above). For example, an employer can prohibit medical marijuana use for transportation employees (which would align with requirements for their CDLs), while permitting custodial employees to use medical marijuana off campus so long as the employer can show it had a legitimate business reason for that distinction.