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Medical Marijuana: Employer Rights

By Susan Baker

September 24, 2018

Ohio Revised Code 3796 establishes among other things, the parameters for the sale and distribution of medical marijuana. Although it was passed in 2016, the effective date has been extended twice. Most recently, the September 8, 2018 date was extended and it is unclear when the law will be effective. There are reports that it will be effective within weeks of that date, however no definitive date has yet been announced. 

Fortunately, Ohio lawmakers did include a provision that offers some guidance and protection for employers who have a drug free workplace policy:  ORC 3796.28

Pursuant to ORC 3796.28:
An employer is not required to permit or accommodate an employee’s use possession, or distribution of medical marijuana.1 An employer is not prohibited from refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use possession, or distribution of medical marijuana. ORC 3796.28 (A) (1) and (2).

An employer may establish and enforce a drug testing policy, drug-free workplace policy or zero tolerance drug policy. The administrator of workers compensation may continue to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program under the auspices of the Bureau of Workers’ Compensation. The law maintains the rebuttable presumption that an employee was under the influence of marijuana and being under the influence of marijuana was the proximate cause of the injury, regardless of whether the marijuana use is recommended by a physician.2 ORC 3796.28 (A) (3) and (6).

Nothing in the law interferes with any federal restrictions on employment, including US
Department of Transportation regulations. Nor does it permit the use, possession or administration
of medical marijuana on federal land located in Ohio. All employees with a CDL will be subject
to the federal laws regarding the use of marijuana. ORC 3796.28(A) (4).

A person may not sue an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against him or her with respect to hire, tenure, terms, conditions or privileges of employment related to medical marijuana. ORC
3796.28 (A) (5).

A person who is terminated because he or she used medical marijuana is considered to have been discharged for “just cause” under the Unemployment Compensation Law if that use violated an employer’s drug-free workplace policy, zero-tolerance policy or other formal program or policy regulating the use of medical marijuana. This means the person will be ineligible to serve a waiting week or receive unemployment benefits for the duration of the person’s unemployment. ORC 3796.28(B).

1 An employer may have to accommodate the underlying condition that requires the use of medical marijuana, but that requirement to accommodate does not extend to the use of medical marijuana while working or reporting to work under the influence of medical marijuana. An employer may but is not required, to allow the use of medical marijuana during nonworking hours and allow a positive drug test, if it so chooses to offer that accommodation for the underlying condition.
2 As was the case prior to the legalization of medical marijuana, supervisors should be trained to observe and document signs that an employee is “under the influence” as the rebuttable presumption is difficult invoke if there is no evidence cooperating evidence that the employee’s accident was caused because he was “under the influence”. 

Ohio Rev. Code Sec. 3796.28 Rights of Employer

Please contact one of the employment attorneys at Critchfield, Critchfield & Johnston, Ltd. at 800.686.0440 with questions related to how ORC 3796.28 affects you or your business.

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