Does Ohio’s New Medical Marijuana Law Contain Hidden Traps for Employers? January 5, 2018

By Jack E. Moran

Currently, Ohio Revised Code Chapter 3796 – which permits the legal prescription and use of medical marijuana – is in the process of being implemented statewide. The law should be fully effective by September 8, 2018.  As many employers have already begun to discuss, the legalization of marijuana poses many challenges, including the thorny issue of whether disability discrimination law requires employers to accommodate an employee’s use of marijuana if it has been prescribed by a doctor.

In looking into these concerns, many Ohio employers were relieved to see that the new law includes a Section 3796.28, which states that “[n]othing in this chapter” – meaning Chapter 3796 – (1) requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana; or (2) prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person because of that person’s use, possession, or distribution of medical marijuana.  Based on this language, many have assumed that Ohio employers are free to deny accommodations for marijuana use and/or to fire employees for such use.

There is a chance, however, that it isn’t quite so simple.  First, the Ohio General Assembly either deliberately or unintentionally failed to amend Ohio Revised Code Chapter 4112 when it legalized medical marijuana.  Chapter 4112, which long predates the medical marijuana law, makes it illegal to deny accommodations to disabled employees and/or to fire employees because of a disability.  Thus, when an employer denies an accommodation to an employee seeking to use marijuana, the employee will sue under Chapter 4112, not Chapter 3796.  Because the terms of Section 3796.28 only apply to Chapter 3796 – and, it seems, not to Chapter 4112 – employees may be able to argue that the requirement to accommodate their use still exists under Chapter 4112.

Furthermore, Section 3796.28 may violate a basic legal principle that says that state laws cannot override or “preempt” federal law.  As many employers know, the federal Americans with Disabilities Act requires that employers accommodate employees with disabilities, and Ohio statutes – like Section 3796.28 – are not permitted to supersede that federal law.  At present, courts confronted with ADA claims for marijuana use have found in favor of the employer (based, at least in part, on marijuana’s illegality at the federal level).  But there are only a few cases dealing with this issue and the law is still developing.  If a court determines that the federal ADA requires an employer to accommodate marijuana use, it will not matter that an Ohio state law says otherwise.

Perhaps the Ohio General Assembly will amend the law before Chapter 3796 is fully implemented, and this issue will be addressed.  In the meantime, however, employers should be wary of any advice that they are permitted to totally refuse accommodations and/or fire employees that are using medically-prescribed marijuana.

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