Ohio recently passed legislation legalizing medical marijuana in varying forms. This legislation goes into effect on September 6, 2016. Along with a multitude of other legal issues surrounding this new legislation, employment law will be impacted in a big way.
Since medical marijuana is by definition a medical treatment for a disease and is prescribed by a medical doctor there are potential American’s with Disabilities (ADA) issues. It would be illegal for employers to discriminate, and thus not hire an applicant, or fire a current employee, due to the underlying medical condition that leads to an individual obtaining a medical marijuana certification. Therefore, when an employer learns that an employee has a medical marijuana prescription the employer should be cautious moving forward.
The law is still attempting to catch up in the area of medical marijuana and employment. Some state laws allow for the use medical marijuana, however, the ADA is a Federal statute, and marijuana is still illegal under Federal law. This leads to a complex legal question about whether the ADA can protect those who are use medical marijuana since it is technically an illegal controlled substance under Federal law.
The way that an Employee Handbook addresses the issue of drugs in the workplace has a large impact on the rights of employers when dealing with a current employee who fails a drug test due to medical marijuana usage. Typically, handbooks will prohibit the use of “controlled substances” while at work, and prohibit employees from showing up to work under the influence of controlled substances. These handbook policies are commonly referred to as “drug free workplaces”. Employers do still have the right to enforce drug free workplace policies, which at this time appears to include termination for the use of marijuana, even medical marijuana. However, this will likely change change in the coming years as the law catches up with the new medical marijuana laws.
The legalization of medical marijuana will also complicate the hiring process. In performing a pre-employment drug screening, an employer may learn that the applicant has a medical marijuana prescription. After learning that the applicant has a medical marijuana prescription employers will need to be careful of their steps moving forward. The employer may not make a decision not to hire the applicant based on the underlying medical condition that has led to the medical marijuana prescription. In gathering information verifying the medical marijuana prescription the employer should have strict procedures for dealing with the information about the underlying condition to ensure that they do not make a decision not to hire based on the specific medical condition. At this point in time it appears that employers are able to make the decision not to hire based on failure of the drug test, but this will likely change in coming years. In other words in the foreseeable future employers will not be allowed to discriminate against an employee who has failed a drug test as a result of medical marijuana usage.