Ohio Governor Kasich signed House Bill 523 into law thereby establishing a statutory right to the use of marijuana for medical purposes for qualifying medical conditions. The bill, which becomes effective September 8, 2016, provides for specific standards and licensing of cultivators and processors of medical marijuana. Further, the bill specifically provides for the licensing of treating physicians and registration of patients who will receive the medical marijuana.

Although registered patients are not subject to arrest or criminal prosecution for their use and possession of medical marijuana or possession of certain permitted paraphernalia, there are limitations to the newly established right. For instance, registered patients are not authorized to operate a vehicle, watercraft, or aircraft while under the influence of medical marijuana. Similarly, registered patients are not authorized to work in opposition of their employer’s policies. Future limitations will be outlined in new rules and undoubtedly through litigation.

Whether opposed to medical marijuana or not, employers are nervous about the effect the new law will have on workers’ compensation programs and claims. In short, workers’ compensation policies and practices will not be immediately impacted.

1. An employee or eligible dependent is not entitled to workers’ comp benefits if being under the influence of marijuana is shown to be the proximate cause of the injury or death. There remains a rebuttable presumption that being under the influence of marijuana is the proximate cause of an injury when a qualifying test detects the presence of cannabinoids above a certain level, depending on the type of test.

2. Employers do not have to permit or accommodate an employee’s use, possession, or distribution of medical marijuana.

3. Employers may refuse to hire, discharge, discipline or otherwise take adverse action against a person’s employment status because of that person’s use, possession or distribution of medical marijuana.

4. Employers may establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance drug policies. Indeed, the creation of these policies is more critical than ever.

5. Moreover, the bill does not create a right for employees to sue employers for refusing to hire, discharge, discipline or otherwise take adverse action against a person’s employment status. For example, an employee discharged because of her use of medical marijuana shall be considered discharged for just cause if her use is in violation of the employer’s policies regarding drug-free workplace or zero-tolerance policy.

Unanswered questions remain as to how state agencies and boards will write the rules for regulating medical marijuana. Further, a 14-member Medical Marijuana Advisory Board will be appointed to recommend rules within the next two years. While some believe the law is imperfect, it gives protection to Ohio employers in this new environment.