A Lesson from New Jersey: Ohio Employers Should (For Now) Consider Accommodating Employees’ Medical Marijuana Use March 28, 2019

By Jack E. Moran

Last year, I wrote a post discussing a potential trap for employers in Ohio’s new medical marijuana law.  You can read it in full here.  In summary, medical marijuana use was legalized in Ohio in Chapter 3796 of the Ohio Revised Code.  That law says that “nothing in this Chapter” – meaning Chapter 3796 – requires an employer to accommodate medical marijuana use.  Based on that broad language, many employers in Ohio are assuming that they have no obligation to accommodate medical marijuana use.

The trap, however, arises from the language: “nothing in this Chapter.”  By its plain terms, that means that nothing in Chapter 3796 requires accommodations for medical marijuana.  That seems clear enough, but a different chapter of the Ohio Revised Code, Chapter 4112, says that employers do have to accommodate medical disabilities.  Assuming that medical marijuana use arose from a prescription for a medical condition that qualifies as a “disability” under the law, employees in Ohio could still argue that Chapter 4112 requires employers to accommodate that use, particularly if the use was offsite and didn’t affect job performance or safety.

Yesterday, a New Jersey court was confronted with this exact issue.  In Wild v. Carriage Funeral Holdings, an employee of a funeral home was fired for failing a drug test.  According to the employee, he was prescribed marijuana after a cancer diagnosis, he only used it after work, and he was never impaired on the job.  The employee also claimed that, before he was fired, he had told his manager about his cancer diagnosis and that he would test positive for marijuana as a result.  Like Ohio, New Jersey’s “Compassionate Use Medical Marijuana Act,” which legalized medical marijuana, says: “Nothing in this act shall be construed to require…an employer to accommodate the medical use of marijuana.”  And also like Ohio, New Jersey has a separate employment anti-discrimination law, which was in place before marijuana was legalized, and which does require employers to accommodate employee disabilities.

Despite the “nothing in this act” language, the court in Wild said that the employee had a valid claim of disability discrimination against the employer.  While the medical marijuana law in New Jersey said that “nothing in this act” required accommodations, the antidiscrimination law still required employers to accommodate disabilities, including an employee’s consumption of prescribed medication.  In this instance, the medication was marijuana, and (depending on the facts) the employer could be required to accommodate it.

Given the profound similarities between the laws in New Jersey and Ohio, employers in Ohio should be reluctant to adopt a blanket policy that refuses to accommodate medical marijuana use, until we get more guidance from Ohio courts on how the state will interpret this new law.

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