Effective September 8, 2016, Ohio will become the 25th state to adopt a medical marijuana law. The new law will permit individuals who suffer from covered medical conditions to use and purchase medical marijuana that will be cultivated and processed in Ohio without criminal prosecution. Below is a summary of the new law and its consequences on current drug policies.
What Medical Conditions Are Covered? Individuals suffering from the following medical conditions can apply for patient registry identification cards: AIDS/HIV; Alzheimer’s Disease; ALS; Cancer; Crohn’s Disease; Epilepsy and other seizure disorders; Fibromyalgia; Glaucoma; Hepatitis C; Inflammatory Bowel Disease; MS; chronic or intractable pain; Parkinson’s Disease; PTSD; Sickel Cell Anemia; Spinal Cord Disease or injury; Tourette’s Syndrome; Traumatic Brain Injury; and Ulcerative Colitis. Additional diseases or conditions can be added by the state medical board.
How Can A Medical Marijuana Card Be Obtained? Individuals suffering from a covered medical condition may apply for patient registry identification cards (Medical Marijuana Card). However, due to the fast-tracking of the law, the state will not begin accepting applications for several months.
Will Medical Marijuana Use Be Legal Prior To The Acceptance of Applications for A Medical Marijuana Card? Yes, but under very limited circumstances. Between September 8, 2016 and ending 60 days after Ohio begins accepting applications, an individual will be able to assert an affirmative defense against criminal prosecution for possessing marijuana and paraphernalia that would be legal under the law. The defense applies only if the individual’s physician has certified, in writing, that (1) the patient has been diagnosed with a qualifying medical condition; (2) the physician has gone over the risks and benefits of using medical marijuana; (3) the physician thinks the benefits of the patient using marijuana outweigh its risks and (4) the marijuana in question must be acceptable under the law.
What Is Acceptable Marijuana Under The New Law? Plant material, edibles, patches, oils and tinctures are the only products permitted. It prohibits smoking and other edibles and also prohibits individuals from growing their own marijuana.
Where Can Legal Medical Marijuana Be Obtained? Between September 8, 2016 and 60 days after dispensaries open in Ohio, individuals who have received a physician certification can obtain their medical marijuana from any source, including drug dealers. However, 60 days after dispensaries open in Ohio, patients will be required to obtain their marijuana from such state certified dispensaries.
How Does The New Law Impact An Employer’s Zero Tolerance Drug Policy? The new law only decriminalizes use and possession of medical marijuana. It does not require an employer to permit or accommodate the use or possession of medical marijuana in the workplace. Accordingly, it if chooses, an employer can include the use of medical marijuana in its current drug policy and subject such users to all aspects of the policy.
Will A Medical Marijuana User Who Fails A Post-Incident Drug Test Be Allowed To Obtain Benefits Under Ohio’s Workers’ Compensation Law? The new law is silent on this issue but in order for a positive drug test to defeat a workers’ compensation claim under the Rebuttable Presumption law, the drug must not be prescribed by a physician. Claimants will argue that their physician certificate or medical marijuana certificate equate to a physician’s prescription. We will need to await decisions by the Industrial Commission and the courts to see if this argument has merit.
Where the Rebuttable Presumption law is inapplicable, an employer must prove that the drug use was the proximate cause of the injury. This can be accomplished by presenting evidence of an extremely high level of the drug in the employee’s system, a physician’s opinion that the drug substantially impaired the employee at the time of the accident and evidence from coworkers that the employee acted erratically or exhibited signs of drug use at and around the time of the accident. Once again, we will have to await decisions by the Industrial Commission and the courts to address this issue.
What Should Employers Do Now? Even though the new law will take several months to be fully functional, employers should review the law, determine their position on the use of medical marijuana in the workplace and then notify their employees of the employer’s position through the distribution of an updated drug policy.
Employers who decide to prohibit the use and/or being under the influence of medical marijuana must update their drug policies to affirmatively state that employees using medical marijuana with a valid physician certificate and/or medical marijuana card are not exempt from the policy and will be subject to all provisions of the policy. The definition of illegal drugs should be updated to include medical marijuana. Also be sure to require employees to notify the employer of their use of any prescription drug that affects their ability to work.
Finally, all supervisors should be educated on the fact that if an employee has a Medical Marijuana Card, he or she suffers from one of the certified medical conditions. This means that although the disabilities laws do not cover active drug users, they very well may cover the underlying medical condition. Therefore, employers may need to engage in the interactive process to determine whether a reasonable accommodation exists and/or is required to ensure compliance with the disabilities laws.
Please contact our office with any questions relating to medical marijuana.