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
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.