Update June 8, 2016: On Wednesday, June 8th, Governor Kasich signed House Bill 523 into law. The law will allow the use of medical marijuana in 20 illnesses and will go into effect 90 days after signing. Because Affirmative Defense goes into effect in September, employers have some decisions to make in the next 90 days.
While the law does allow employers to choose to ban all use of medical marijuana at the worksite, even with a physician's recommendation, the policy must be clearly written and communicated to their employees prior to enforcing the rule. With the OSHA record keeping rule also directly affecting how post accident testing can be conducted taking affect in August, this is a very good time for employers to update policies, communicate to their employees and ensure that supervisors have been trained for these important updates.
First Published on June 3, 2016: At this writing, Ohio is waiting for a decision by Governor John Kasich on House Bill 523. HB523 would, with a physician's recommendation, make marijuana legal for use in 20 medical illnesses and for chronic or intractable pain. It's still unclear if the governor will sign off on it, however, with 90 percent of Ohioans favoring legalization, it would seem likely. While we wait, let's talk about what approval will mean to Ohio employers.
Many of the details of this potential law are still unknown. If Governor Kasich signs the bill, a 14 member bipartisan Medical Marijuana Advisory Committee will craft the rules, a process that could take up to two years to complete. For employers, however, decisions will have to be made on their substance abuse policies long before the advisory committee crafts the final rules. If signed into law, an Affirmative Defense will go into effect in September, providing protection from prosecution for patients and their caregivers as long as the marijuana they use follows the guidelines of the law. In other words, they can't smoke it or grow it at home but they could easily travel to another state where use is legal and bring it back for use here. For employers, that means that they could be dealing with medical marijuana issues in the workplace as early as September.
HB523 does give employers the right to ban use of medical marijuana, even when it is recommended by the physician. Employers have the right to terminate current employees and decline to hire applicants if use is detected. Employers must have a written policy in place and communicate the policy to all employees prior to enforcing it. According to the guidelines, doing so will give the employer the right to terminate employees using the drug, even with a physician approval, and decline to hire applicants. Of course, employers could make other decisions similar to how they handle other medications when impairment is likely. Not allowing employees to work in safety sensitive positions or reassigning the employee to other job duties may be an option.
We will update you as soon as Governor Kasich makes his decision.