HR Reminder: Medical Marijuana Q&A
As a reminder, the new law legalizing the use of medical marijuana in Ohio becomes effective September 6, 2016. Under the new law, nothing prohibits an employer from refusing to hire; discharge; discipline; or otherwise take 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 (O.R.C. 3796.28(A)(2). Below are several questions we have received and wanted to review with our members.
Q: Once the law becomes effective, can I refuse to hire an applicant based on their use of medical marijuana?
A: Yes, under Ohio’s new law, but dealers need to keep in mind that Federal Laws may also need to be addressed. Because of this, it is important to consider how the employee applicant’s use of medical marijuana is obtained. If medical marijuana usage is asked of an applicant during an interview the concern may arise that the applicant, if responding yes, may respond further and identify what serious medical condition the medical marijuana is prescribed for. Although, an employer would be within the new Ohio law in refusing to hire the applicant on the basis of their using medical marijuana, an applicant now may have an argument that the real reason they were not hired was because of their serious health condition. The new Ohio law does not immunize an employer from an ADA claim.
So what is a dealer to do? We suggest letting your pre-employment drug testing ask the question for you. If the marijuana (medical or otherwise) shows up in the pre-employment drug screen the employer is completely immunized in the decision not to hire the individual based on the positive test.
Q: Should we update our handbook to address the medical marijuana issue?
A: If you have a current drug testing policy, there is no need to update your handbook at this time. The new law states at O.R.C. 3796.28(A)(3) that nothing in the law prohibits an employer from establishing and enforcing a drug testing policy, a drug-free workplace policy, or zero-tolerance drug policy. Accordingly, those dealers with a current drug policy should simply maintain their policy and process. If you do not have a current drug testing policy and wish to institute such a program in preparation for the law’s effective date, please contact GCADA’s Dealer HR Services for assistance.
Q: If I terminate an employee for a positive test which resulted from the use of medical marijuana, can they collect unemployment?
A: No. The law specifically states that a former employee cannot collected unemployment benefits if that person was terminated under a company’s zero tolerance policy as a result of the use of medical marijuana.
Q:How should we treat post-accident testing once this is in place?
A:For post-accident testing, dealers should only drug test where the employee was at fault or the accident could have been avoided. If for an example, an employee was standing in normal working position and has a box fall on their head testing is not necessary. However, where an employee caused the accident (driving car into garage) the dealer should test as usual.
Again, the law contains important provisions allowing dealers to continue to manage their dealership and employees. Under the law, an employer is not required to permit or accommodate an employee's use, possession, or distribution of medical marijuana.
If you have any questions regarding the changes, please contact Pat Harrington or Nick Hanna at firstname.lastname@example.org or email@example.com. This notification and its contents should not be construed as legal advice.
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