Prior to breaking for summer recess, the Ohio Legislature passed House Bill 523, a bill that would make Ohio the 25th state to legalize medical marijuana, and Governor Kasich signed the bill into law last week. However, action on medical marijuana began much earlier.
HISTORICAL AND POLITICAL LANDSCAPE
Last year, Responsible Ohio’s ballot initiative, Issue 3, to legalize marijuana for both medicinal and recreational purposes, was soundly defeated by an Ohio Chamber led coalition. One piece of information that came out of that effort was that medical marijuana polled very high among Ohioans. Depending on the poll, 70 to 80 percent of Ohio’s population supported medical marijuana in some form. Those numbers are very difficult to ignore. In response, the legislature undertook efforts to gain more information and a better understanding of medical marijuana.
Two Ohio Senators, Dave Burke and Kenny Yuko, toured the state going to major metro areas to ask citizens for feedback and information from citizens. The Ohio House created the Medical Marijuana Task Force to examine medical marijuana in a more formal setting. The Task Force included three legislators, Reps. Kirk Schuring, Steve Huffman, and Dan Ramos. It also included others representing everyone from law enforcement to doctors to employers. Linda Hondros of the Hondros Family of Companies, and past Chair of the Ohio Chamber, was our representative on the Task Force.
The Task Force conducted six hearings where they heard testimony from patients, parents of sick children, legal professionals, doctors, treatment providers, law enforcement, officials from states that have legalized medical marijuana, cultivators of marijuana, among others. During one piece of interesting testimony, Rep. Schuring, chair of the Task Force, had to kindly ask the person testifying to refrain from passing around a zippered bag containing “various items purchased in Colorado” that he wanted to show to the task force members. Through this process, members gathered information that eventually became the foundation of HB 523. Included in the bill were employer protections advocated by the Ohio Chamber.
Adding further pressure to the legislature’s work, two groups spearheading ballot initiatives to legalize medical marijuana in Ohio’s Constitution were certified to begin collecting signatures to appear on the fall ballot. The first group, Ohioans for Medical Marijuana (OMM), backed by Washington, D.C. based Marijuana Policy Project (MPP), was well funded and had successfully pushed legalization of medical marijuana in other states. Following the passage of HB 523, OMM suspended its campaign to gather the over 305,000 signatures necessary to appear on the November ballot. In a statement, the group said that it will now change its focus to work with the legislature and administration on implementation of medical marijuana. The second group, Grassroots Ohio, has vowed to continue pushing its constitutional amendment that would legalize medical marijuana and industrial hemp production. However, we will have to wait to see whether Grassroots Ohio has the funding or ability to get to the ballot. Both of these constitutional amendments were much broader than HB 523.
EMPLOYMENT LAWS
The bill contains a number of protections for employers advocated by the Ohio Chamber. The inclusion of these provisions was crucial in allowing employers to maintain both safety for workers and comprehensive human resource policies. Further, the bill establishes clear and unambiguous rules that will help prevent costly legal battles over how medical marijuana will be handled in the workplace.
These protections include:
•Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana.
•The bill allows an employer to discharge, refuse to hire, discipline or take adverse employment actions against an individual with respect to tenure, terms, conditions, or privileges of employment due to the individual’s use, possession, or distribution of medical marijuana.
•Nothing in HB 523 will prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.
•It is also explicitly stated that HB 523 is not meant to interfere with any federal restrictions on employment, including Department of Transportation regulations.
•Further reiterating the intent of the above protections, the bill does not permit a person to sue an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment due to medical marijuana.
•The Bureau of Workers’ Compensation (BWC) may still grant rebates or discounts on premium rates to employers who participate in a BWC drug-free workplace program.
•An employee who is discharged due to his or her use of medical marijuana would be ineligible for unemployment compensation benefits if the medical marijuana use was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.
•Reiterates that an employee is ineligible for workers’ compensation benefits if the employee was under the influence of marijuana, whether recommended by a physician or not, and being under the influence was the proximate cause of the injury.
By legalizing medical marijuana through statute rather than placing it in the constitution, the legislature has ensured the ability to update and revise Ohio’s medical marijuana laws as necessary. This is crucial, as there will undoubtedly be unintended consequences that will require further updates. It also allows the medical marijuana laws to be updated with changes in medicine, research, and federal laws. Now that we have gone through the history, political landscape, and employer protections, we are left with the significant question of, so what else does HB 523 actually do? In the next blog post, I will discuss an overview of the process and how individuals obtain medical marijuana.