As patient enrollment in Ohio’s medical marijuana program continues to rise, some may be wondering how their employment could be affected if they were to start using medical marijuana as a registered patient with a qualifying medical condition. While this article is not intended to give legal advice and Bloom Medicinals encourages its Ohio patients to conduct their own research, we will provide a general summary of the information currently available online. For patients who would like to receive more detailed information specific to their own situation, we encourage you to speak with an Ohio-licensed attorney experienced in employment law.
Before we get started, it is important to be clear on one thing: at no time is it ever appropriate to operate a motor vehicle or other type of machinery, or to show up at one’s place of employment while impaired and/ or under the influence of medical marijuana, or any other type of medication known to cause impairment to cognitive or motor function. This is common sense, and Bloom Medicinals encourages all its patients to exercise common sense with clear-eyed intention.
In 2016, the Ohio General Assembly set up the framework to legalize medical marijuana in Ohio, to be effective Sept. 8, 2018. It was approved for certain medical conditions, including pain that is either chronic and severe or intractable, PTSD, traumatic brain injuries, and other conditions which you can learn about here. At this time, the only authorized forms of medical marijuana are edibles, oils, patches, plant material and tinctures. Vaporization of medical marijuana product is permitted, however smoking/ combustible forms of marijuana remain illegal. Growing marijuana at home is also prohibited.
In the State of Ohio employers have a choice, as its medical marijuana law neither requires nor prohibits employers to accommodate registered medical marijuana patients. While employers are permitted to continue zero-tolerance drug-free workplace programs, including pre-employment and random drug screening policies, taking an adverse employment action against an employee based upon an employee’s disability or perceived disability remains prohibited under Ohio law. Additionally:
While some organizations may continue to perpetuate social stigma through anachronistic narratives that are out of touch with science and cultural progress, many are taking a proactive approach to not only accommodate their employees, but to ensure that they are attracting and retaining a talented and reliable workforce. Several options are available to Ohio employers. For example, employers who test employees for drugs may opt to treat a positive marijuana test result like other drug-positive test results by verifying that the patient has a prescription (or in the case of medical marijuana, the physician’s recommendation), and make an accommodation for that employee. Many employers also offer separately defined testing and usage guidelines based upon the employee’s job classification and duties. For example, a heavy-equipment operator may have different testing thresholds than would be required of an administrative professional.
Under current federal law, medical marijuana continues to be illegal pursuant to the Controlled Substances Act, and is listed as a Schedule I drug. According to the Drug Enforcement Administration (DEA): “Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse.” While this law has not yet changed it is certain to change in the foreseeable future as the federal Food and Drug Administration has already approved several cannabis-based medications. Until it does however, if the employer is the federal government, a federal contractor, or otherwise receives federal funds or employs workers in federal safety-sensitive positions, the employer must maintain a drug-free workplace, even where there is a state-authorized medical marijuana program in force.
So where does all this leave Ohio employers and employees? The following are a few suggestions worth considering:
One of the many challenges employers face today is attracting and retaining exceptional workforce talent who are engaged in the company’s success. Equally true, one of the many challenges employees face today is finding an organization engaged in their employee’s success. Corporate cultures can create barriers or create opportunities, while employees with exceptional work ethics and values can create confidence and positively sway the organization’s cultural narrative. Whether you are an employer or an employee, you will well-situate your company and your career to attract the best the other has to offer through understanding, education and empathy.