(June 2019) Medical marijuana is available in Ohio, but that doesn’t automatically mean employees can use the drug without risking their job. Under Ohio House Bill 523 employers are not required but are not prohibited from allowing the lawful use of marijuana as medicine (unless prohibited by an authority like the Department of Transportation.
This means that employers need to determine – then communicate to their employees — where they stand on this issue. This is especially important in light of the assumptions their employees might have both about the law and what it means to them and their workplace:
- “Now that medical marijuana is accessible in Ohio, my employer has to allow it.”
As we’ve shared, employers can choose whether or not they will make any exceptions for an employee’s medical marijuana use. Furthermore, employers can establish and enforce drug-testing, drug-free workplace policy or zero-tolerance drug policies and take adverse action against employees who violate their program.
- “Once a doctor prescribes marijuana, the employee has a right to use it.”
There is no such thing as a “prescription” for marijuana since the Food and Drug Administration (FDA) has not approved marijuana as medicine. Instead of being given a prescription, qualifying patients in Ohio are given a written recommendation from their doctor and placed on the patient registry so they can purchase marijuana at an authorized licensed dispensary. Because it’s not a prescription, an employer can’t treat it like one (e.g., include it under the prescription drug rule in their drug-free workplace policy). As a result, employees following a doctor’s medical marijuana recommendation could be violating their employer’s drug-free policy if they test positive for marijuana.
- “Now that marijuana is legal in Ohio, my employer won’t be testing for it anymore.”
Employers are allowed to establish and enforce a drug-free workplace program, including testing for marijuana. In best-practice drug testing, there is an established “cut-off level” for marijuana. A test result for marijuana at or above that level is sent to a Medical Review Officer (MRO) who reaches out to the employee for an explanation. But because marijuana is NOT a prescription, the MRO will rule the test “positive.”
For employers allowing the use of medical marijuana, they will then have to take the positive test result and work with the employee to verify the medical marijuana recommendation, discuss dosage and determine whether it is safe for the employee to work. Employers should use caution in these discussions, as they could learn of medical information and history about their employee that they might not want to know.