Ohio employers need to prepare for state's new medical marijuana law, attorney says

By Karen Kidd | Jun 27, 2016

COLUMBUS, Ohio (Legal Newsline) – Ohio's new law that legalizes medical marijuana in the state may end up conflicting with federal law, depending on a looming decision about whether to change marijuana's drug status, an employment attorney said during a recent interview.

"That's the piece that employers really need to pay attention to," Sarah J. Moore, a partner in Fisher Phillips' Cleveland office who works regularly in labor and employment law, said during a Legal Newsline telephone interview.

"It could happen if marijuana, or at least medical marijuana, is redefined as a legal drug."


Marijuana currently appears as a Schedule 1 drug under the Controlled Substances Act. Drugs listed under Schedule 1, according to the federal law, have "no medical use and a high potential for abuse" and is one of "the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence." Other drugs listed under Schedule 1 include heroin, LSD and Ecstasy.

However, a decision expected any day now from the Drug Enforcement Administration could change all that. In a 26-page-memo sent to lawmakers in April, DEA officials announced that a decision about whether to change marijuana's status as a Schedule 1 controlled substance should be reached sometime in the first half of 2016. 

"If it is rescheduled on the federal side, then it's possible that the state law will be in conflict," Moore said. "So it's a very interesting time."

It also means that Ohio employers need to be sure their employment and workplace policies are in line with the new state medical marijuana law while being mindful that changes in federal law might be coming, Moore said.

Ohio became the 26th state to legalize medical marijuana earlier this month when Gov. John Kasich signed House Bill 523 in law. Under the law, which goes into effect Sept. 6, Ohio residents with a qualifying medical diagnosis may travel to other states where marijuana is legal where they may purchase marijuana and then return with it to Ohio.

"It's a law intended to draw from all the best-known practices and to allow for what happened during the implementation stage in other states," Moore said. "The state was looking for the best way to put a medical marijuana system into place."

One detail about which Ohio lawmakers were sensitive was the creation of that medical marijuana system while still protecting employers in the state, Moore said. Ohio's new legislation puts in place certain shields and protections for employers and helps preserve drug-free workplaces, she said.

Specifically, the new Ohio medical marijuana law does not require employers to permit or accommodate an employee’s use, possession or distribution of medical marijuana. Employers also are not required to curtail any adverse employment decisions, such as a demotion, firing or transfer, based on an employee's use, possession or distribution of medical marijuana. Employers also are not required to change their drug-free workplace or zero-tolerance drug policies.

The developers of Ohio's new law also were mindful of 2013 guidelines from the U.S. Department of Justice, Moore said. Those guidelines indicate marijuana is a low priority enforcement issue for the DOJ, so long the marijuana being obtained, possessed and used is in compliance with local and state laws.

"It's obvious that the Ohio law was written to keep the state off the DOJ's radar," Moore said. "It's likely that the Ohio law will not be at the top of the list for enforcement issues."

So the Ohio law seems to have employers' concerns, as well as the state's own worries about federal law, sewn up, but it all could come unraveled if marijuana is rescheduled away from Schedule 1, Moore said.

"That will have a domino effect on all the states, not just Ohio," she said.

Employers need to prepare for both the employer-friendly Ohio medical marijuana law and what may come down from the DEA, Moore said.

"Employers in Ohio, right now, should update their drug free workplace and zero tolerance policies to address medical marijuana," Moore said. "That's got to be a priority."

Moore recommended that policies clearly state whether medical marijuana is prohibited.

"If that's the case, then the policy needs to clear, that its use is a violation of that policy," she said. "And it can be grounds for disciplinary action and that can include termination."

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