Medical Marijuana Leafs Out to Ohio
By John Bouhall, CPCU
Medical marijuana has spread all over the country and is now legal in 33 states and the District of Columbia. The first authorized dispensary of medical marijuana in Ohio opened in January 2019 with more to come. Now that medical marijuana is legal in Ohio and will become increasingly more available, what does it mean for employers in Ohio? Let’s take a look at this from a few perspectives.
Is any of your work federally-related or performed on federal land? If you are a federal contractor, receive federal funds, work on federal land, or employ workers in federal safety-sensitive positions, federal law requires you maintain a drug-free workplace. Marijuana in all forms, including what any state allows as legalized medical marijuana, is against federal law.
Safety is key. Employers are responsible for providing a safe workplace. This entails protecting workers and others from anything that may cause harm and assessing risks in the workplace. If your business involves safety-sensitive activity, such as working with automated tools, handling chemicals, operating machinery or vehicles, you, the employer, may decide the best choice is a zero-tolerance policy. The employer should also consider that some users, even legal users of medical marijuana, experience distracting effects from cannabis use, which may pose issues with clear thinking and/or detail work.
Does Ohio’s medical marijuana law provide any protection from legal liability to employers? The short answer is “yes, but …”. Legalized medical marijuana is a new leaf in Ohio. It has not been court-tested. The law permits employers to implement and enforce policies of drug-testing, zero-tolerance, as well as drug-free workplace programs. Since the law does not either require or prohibit accommodations for medical marijuana use, employers may choose to refuse employment, to fire, to discipline, or take other adverse employment action involving an individual due to that individual’s use of medical marijuana. Nonetheless, depending on the circumstances, an employer may be held liable for refusing to accommodate the underlying condition (such as a disability) giving rise to either the applicant’s or employee’s use of medical marijuana. It is a good idea to discuss with your attorney and insurance agent the benefits of purchasing Employment Practices Liability Insurance.
What if your business is in Ohio, but also has operations in other states? The issue of legalized medical marijuana is rapidly evolving in the US. Ohio employers with locations in other states need to be pay attention to the language of each respective state’s statute as well as legal trends and court interpretations in all states in which they operate.
Employer Policy: Include straightforward guidelines about medical marijuana in your employee manual and notify employees of updates. Communicate the policy clearly, consistently and regularly. Enforce your policy. If you choose to accommodate employee use of medical marijuana, specifically designate what positions are allowed to use it (if not all) and whether or not it can be used during work hours or anywhere on company property, including outside in the parking lot. Employers with operations in other states should ensure their medical marijuana policy takes into account the law in each particular state. Also, managers and supervisors should be trained to identify and document occurrences of employee impairment.
Don’t panic. Ohio’s medical marijuana law prohibits home growing. If you have visions of an employee(s) placing pot plants in the office for any reason, decorative or otherwise, realize that is against the law. The law also bars combustion of medical marijuana, which means smoking joints in the workplace or anywhere else in Ohio is still illegal. The law does allow vaping medical marijuana.
The information in this blog is not legal advice. Consult experienced counsel regarding Ohio’s medical marijuana law and your legal concerns.
Contact your Trusted Choice Independent Insurance Agent at Richey-Barrett Insurance for Commercial Insurance, including Employment Practices Liability Insurance.