Assessing employment law realities in Ohio’s medical marijuana system

As mentioned in a prior post, the students in my Marijuana Law, Policy & Reform seminar are back from break and back at presentations on their research topics. The second presentation this week will focus on "on Ohio’s employment law future and will draw inferences from other states’ statutory language and case law to predict how discrimination cases may (or may not) proceed." Here is how my student has summarized her topic, along with the background readings she has provided for classmates (and the rest of us):

In Ohio, the law gives employers discretion to accommodate employees' medical marijuana use or not, and has a provision specifically designed to thwart disability claims from proceeding.  It is possible that a court could find that failure to accommodate is not per-se unreasonable, and an Ohio court decision could follow the lead of a in Barbuto and Connecticut court in Noffsinger.   This interpretation would require that an employee argue that the Americans with Disabilities Act's carve-out for medications should be used to interpret Ohio's Revised Code § 4112.02, creating a carve-out for legal (under state law) marijuana used as medication under the supervision of a medical professional.  Due to fairly clear legislative intent to prevent employment discrimination actions for medical marijuana under Revised Code § 3796.28(5), the more likely path in Ohio is probably the way of Colorado in Coats which allowed an employer to fire a disabled employee for failing a baseline Cannabinoid presence test, regardless of his medical status, as violating employer policy.

 

Here are some additional background resources:

A Survey of Medical Marijuana Laws Impacting the Workplace by Joseph H. Yastrow

Employers and workers grapple with laws allowing marijuana use by G. M. Filisko

 

Here are resources more specific to my topic:

Ohio’s medical marijuana employment provision: Revised Code § 3796.28(5)

Links directly to leading cases: Noffsinger from CT and Barbuto from MA and Coats from CO

Ohio's disability anti-discrimination regulation under Code § 4112: OAC § 4112-5-08 Discrimination in the employment of the disabled