A special thanks to one of our summer clerks, Abigail Chin, for her assistance with this article.

In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.

Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 allows people with the following qualified medical conditions to receive a physician’s recommendation for medical marijuana: HIV/AIDS, Alzheimer’s disease, Amyotrophic lateral sclerosis (ALS), cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is chronic, severe and intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury and ulcerative colitis. Marijuana is only permitted in certain forms, like edibles and vaporizers; as smoking it is prohibited under the new law.

The good news for employers is that the new law will not require changes to your workplace drug testing or drug-free workplace policies. Employers are free to continue drug-free workplace policies and drug-testing, even if the policies adversely affect employees who legally use medical marijuana.

Here are the key points you need to know:

  1. Employers are not required to permit or accommodate an employee’s use, possession or distribution of medical marijuana.
  2. Employers can refuse to hire, discharge, discipline or take other adverse action against employees who use, possess or distribute medical marijuana.
  3. Employees cannot sue employers for adverse action based on medical marijuana use.
  4. Employees terminated under workplace drug testing or drug-free workplace policies will be considered terminated “for cause” and will not receive unemployment benefits.
  5. Employers can establish and enforce drug testing, drug-free workplace and zero-tolerance policies.
  6. Federal restrictions on employment, including U.S. Department of Transportation (DOT) mandated testing remain valid.
  7. Drug testing policies under the Ohio Bureau of Worker’s Compensation’s Drug-Free Safety Program (providing workers’ compensation premium rebates) remain valid.
  8. The rebuttable presumption that an employee is ineligible for workers’ compensation benefits if the employee, when under the influence of medical marijuana, causes his/her own workplace injury remains valid.

Marijuana use, including medical marijuana, remains illegal under federal law. This also means that there is no duty under the Americans with Disabilities Act (ADA), as amended, to accommodate medical marijuana use in the workplace. Some employers, however, may seek to change their policies to permit or accommodate employees’ lawful use of medical marijuana. Any employer considering such an exception should consider potential economic costs, safety risks, and employee morale implications before making any changes. The good news for now is that no changes must be made to workplace drug and alcohol policies and testing programs.