United States: Ohio Becomes The Latest State To Legalize Marijuana For Certain Medical Uses While Avoiding Constitutional Ballot Initiatives

Last year, Ohio legislators found themselves caught in the middle of a media firestorm created by various pro-legalized marijuana groups who were politically savvy and financially funded enough to place multiple proposed constitutional amendments on Ohio's November 2015 election ballot. While Ohio voters soundly rejected the proposed constitutional amendments—which also sought to legalize recreational marijuana use and create a small monopoly of marijuana grow site operators—the proponents' "back door" efforts to create new Ohio law through a state constitutional amendment instead of through the legislative process did not go unnoticed by members of Ohio's General Assembly. The intense media attention and political polling from last year's ballot initiatives also made clear that Ohioans were ready to legalize marijuana for medical purposes.

Beginning early in 2016, both houses of Ohio's General Assembly worked quickly and collaboratively to draft comprehensive legislation that would legalize certain uses of marijuana in Ohio for medical purposes. On June 8, 2016, Ohio Governor John Kasich signed the legislation into law. Although the new law technically takes effect on September 6, 2016, Ohio must first take steps to establish the Medical Marijuana Control Program (or the MMCP), which will oversee the new law and which could take up to two years to be fully operational.

The new law allows patients suffering from a qualifying medical condition, which includes over 20 conditions, including HIV/AIDS, epilepsy, cancer, and post-traumatic stress disorder, to use marijuana. Under the new law, medical marijuana will be dispensed only to an individual (or a caregiver of an individual) who is registered with the state and has been issued a patient or caregiver identification card. Before that happens, the state's Department of Commerce and the State Board of Pharmacy must establish rules for the licensure of cultivators, processors, and retail dispensaries as well as for the registration of patients and caregivers.

The following forms of medical marijuana may be dispensed: oils, tinctures, plant material, edibles and patches. In addition, vaporization of medical marijuana is permitted. Notably, smoking or combustion of medical marijuana is not authorized under the law.

Marijuana Remains Illegal under Federal Law

Of course, under the federal Controlled Substance Act ("CSA"), marijuana is still designated as a Schedule I controlled substance.1 The U.S. Supreme Court clarified over a decade ago that there is no exception to the CSA's prohibitions on manufacturing and distributing marijuana for medical necessity, holding that the states do not have the authority to legalize what Congress has deemed unlawful.2 Because medical marijuana remains illegal under federal law, employers are not required to accommodate its use under the Americans with Disabilities Act ("ADA"), although, depending on the circumstances, employers may need to accommodate the medical condition that underlies the marijuana use. Additionally, federally mandated drug-free workplace programs, including those subject to the jurisdiction of the U.S. Department of Transportation, require employers to report positive marijuana test results regardless of whether an employee uses marijuana for medicinal purposes.

Ohio Employers Can Still Maintain a Drug-Free Workplace

For employment purposes, Ohio's medical marijuana law tracks federal law. The new law preserves Ohio employers' right to establish and enforce drug-testing, drug-free workplace, and zero-tolerance drug policies. Specifically, the new Ohio law:

  • Does not require an employer to permit or accommodate an employee's use, possession or distribution of medical marijuana.
  • Does not prohibit an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person because of the person's use, possession, or distribution of medical marijuana.
  • Does not permit a person to commence a cause of action against an Ohio employer for refusing to hire, or otherwise taking an adverse employment action against a person with respect to the terms, conditions, or privileges of employment related to medical marijuana.

The explicit protections for employers in the new Ohio law should provide employers some comfort. In comparison, about one third of the other states that have legalized medical marijuana provide protections for workers who use medical marijuana, while Ohio workers are provided no such relief.3

In addition, Ohio employees who are terminated for violating an employer's formal policy regulating the use of medical marijuana will be considered "discharged for just cause" under Ohio's Unemployment Compensation Law. As a result, individuals who have been discharged for using medical marijuana will likely be deemed ineligible for unemployment benefits.

Likewise, the use of medical marijuana may also affect an employee's eligibility for workers' compensation benefits. Regardless of whether marijuana use is recommended by a physician, an employee will likely be ineligible for workers' compensation benefits if the employer can show the injury was caused by the employee's being under the influence of marijuana.

Guidance for Ohio Employers in Navigating the New Law

The new Ohio medical marijuana law provides an opportunity for employers to review their drug-free workplace policies to ensure they meet the mandates of this law and the ever-changing landscape across the country. Another reason to bolster a drug-free workplace policy now and in advance of the MMCP's establishment is to set clear guidelines for employees, who may believe that their right to use medical marijuana commenced this week. Here are some tips:

  • The policy should prohibit illegal drug use, regardless of where or when the use occurs.

Very often, drug policies prohibit the use of illegal drugs only at work, during work hours and/or on the work premises. Similarly, policies sometimes only prohibit being under the influence of illegal drugs at work or on work premises. This becomes problematic because marijuana may show up in a drug test hours, days, and sometimes weeks (for chronic users) after an individual has used or consumed marijuana. Simply prohibiting illegal conduct saves an employer from a debate over when the marijuana use occurred.

  • Define illegal drugs to include all drugs illegal under "federal, state or local law."

Communicating your expectations to workers is important. Make clear that so long as the drug is illegal under federal law, it will be illegal under your policy, without regard to whether it is legal under state law. An ambiguous policy may lead to confusion and suggest that the use of marijuana obtained through the medical marijuana program is permitted under your policy.

  • Make clear that because marijuana is (still) illegal under federal law, it is considered an illegal drug under the drug-free workplace policy and prescription drug policy.

While Ohio does not provide protection to workers who use medical marijuana, a multistate employer should consider adding an additional sentence stating the employer "will accommodate the use of medical marijuana only as may be required by law."


While the effective date of the Ohio medical marijuana law is September 6, 2016, it is possible it will take up to two years for the MMCP to be established. Nevertheless, employers can and should prepare now for the impact of its implementation.


1 21 U.S.C. § 802(16). Also, it is still illegal for physicians to prescribe Schedule I controlled substances.

2 United States v. Oakland Cannabis Buyers Co-Op, 532 U.S. 483 (2001); Gonzales v. Raich, 545 U.S. 1 (2005).

3 For example, Arizona, Delaware, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island have enacted medical marijuana laws that provide protections for workers who use medical marijuana. However, the scope and protections afforded to workers using medical marijuana vary from state to state. Accordingly, it is critical to consult the actual law itself to determine the rights and obligations of an employer under each law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Kevin E. Griffith
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions