Employment Law Update – Medical Marijuana

How will the legalization of medical marijuana in Ohio affect your business?

On June 8, 2016, Ohio Governor John Kasich signed House Bill 523 (HB523) into law, making Ohio the 25th state to adopt the legalization of medical marijuana. This law is set to become effective in September of 2016. This legislation will undoubtedly be the cause of much confusion and misunderstanding among both employers and employees in Ohio as they begin dealing with the effects of this law in the workplace.

Although the specific rules and regulations governing the manufacture and distribution of marijuana have not yet been established (many experts believe this process could take up to two years), the law provides a sufficient framework for Ohio employers to gain an initial understanding as to how this new legislation may impact their businesses. It should be anticipated that Ohioans will begin traveling to nearby states to obtain medical marijuana as soon as September of this year. Consequently, it would be prudent for employers to put in place policies and procedures for dealing with legalized marijuana prior to the effective date of this legislation.

Below is a brief summary from the Ohio State Bar Association regarding the passage of HB523. The article provides “5 things employers should know about Ohio’s medical marijuana law.” Please review this article and consider how best to incorporate its guidance into your workplace.

Should you have any questions regarding this new legislation, please feel free to contact us.

5 things employers should know about Ohio’s medical marijuana law
June 20, 2016
By Sarah J. Moore
Over the summer, Ohioans will begin grappling with implementation of House Bill 523, the new law that legalizes medical marijuana in Ohio effective Sept. 6, 2016. Given the rise of medical marijuana legalization across the nation and the lack of uniformity in state regulations, it’s reasonable to anticipate confusion and misperceptions about what Ohio’s new law allows and how it will operate. Moreover, in light of last year’s high-profile marijuana constitutional amendment and the possibility of related ballot initiatives later this year, we can expect that there will be uncertainty regarding legality of marijuana possession and use.
Although it will likely take Ohio up to two years to draft and implement regulations governing the manufacture and distribution of medical marijuana, we can expect that patients suffering from one of the 20 qualifying medical conditions will begin travelling to other states in 2016 to purchase medical marijuana for use in Ohio. Consequently, it is critically important for employers to identify how Ohio’s new medical marijuana law will impact workplaces in our state.
1. Drug-free workplaces and zero-tolerance drug policies remain alive and well
Nothing within Ohio’s new law interferes with an employer’s right to prohibit the use, possession or distribution of marijuana in the workplace. However, although drug-free workplace and zero-tolerance drug policies will remain as is, employers should still review and update these documents to specifically state that, despite Ohio’s new law, medical marijuana is prohibited under these policies. For those employers who may not have a drug-free workplace or zero-tolerance drug policy in place, it is essential that one is drafted before September. Otherwise, it is arguable that any employee could possess or use medical marijuana in the workplace. At a minimum, the updated policies should be distributed with written employee acknowledgements secured. Best practice recommends providing training for employees in understanding these policies and how potential medical marijuana workplace issues will be handled by the employer.
2. No obligation to accommodate an employee’s medical marijuana use
An employee or job applicant currently engaging in illegal use of drugs is not a qualified individual with a disability for purposes of the Americans with Disabilities Act (ADA). Because marijuana is listed on Schedule I of the Controlled Substances Act (CSA), it is an illegal drug. Although the U.S. Department of Justice’s enforcement policy makes possession of small amounts of marijuana authorized under state law a low priority, it remains an illegal drug under the CSA. Employers are not required to accommodate an employee’s medical marijuana use under the ADA. Similarly, there is no recognized obligation under the FMLA to provide leave related to medical marijuana use to treat serious or chronic illness. Ohio’s new law does not change analysis of the ADA or FMLA and clearly states that an employer is not required to provide a legal accommodation to an employee to use, possess or distribute medical marijuana.
3. It’s legal to fire employees for use, possession or distribution of medical marijuana
For now, employers retain the right to fire an employee because of his or her use, possession or distribution of medical marijuana. Ohio’s new law specifically states that it does not authorize employees to sue an employer for adverse employment action related to medical marijuana. The law also provides that employers are not required to curtail such adverse employment action due to an employee’s use, possession or distribution of medical marijuana. Because the ADA does not protect individuals currently using illegal drugs, an employee may still be fired for periodic use of marijuana (medicinal uses included) in the weeks and months before the discharge. As an aside, nothing within Ohio’s new law alters compliance requirements related to applicable U.S. Department of Transportation regulations.
4. Medical marijuana users are not entitled to unemployment benefits
Ohio’s medical marijuana law contains a provision stating that, for purposes of Ohio’s unemployment compensation law, an employer has “just cause” to fire an employee for his or her use of medical marijuana, provided the use violated the employer’s drug-free workplace or zero-tolerance drug policies. Key to this protection is the existence of clear drug-free or zero-tolerance drug policies and a demonstration that the employee had prior notice and had acknowledged them.
5. Workers’ compensation claim defenses are unchanged
Under existing Ohio law, intoxication (including marijuana) is a defense to a claim for workers’ compensation benefits. Ohio’s new medical marijuana law does not alter an employer’s right to challenge workers’ compensation claims where medical marijuana use results in injury and allows it to utilize a positive, post-accident drug screen for marijuana. In other words, if an employee is fired as a result of medical marijuana use, the discharge will be deemed “for just cause” and the employee will be ineligible for unemployment compensation. Similarly, an employee will not be eligible for workers’ compensation if his or her injury was a result of being under the influence of marijuana.

One S. Limestone Street, Suite 800 • P.O. Box 1488 • Springfield, Ohio 45501-1488 •
Tel 937.324.5541 • Fax 937.325.5432 • www.martinbrowne.com

Employment Law Update – Overtime

What is changing with the new Overtime Rule?

The U.S. Department of Labor issued the final version of its new overtime exemption rule on May 18, 2016. These rules were designed with the stated goal of ensuring that 35% of all workers nationwide would qualify for overtime benefits. As a result, many employers will soon face new financial challenges in dealing with formerly exempt employees no longer meeting the criteria for exemption. Employers may find themselves faced with the choice between raising salaries of currently exempt employees on the one hand, or dealing with additional overtime costs on the other.

Below is a brief summary from the Ohio State Bar Association regarding DOL’s new exemption requirements. These new standards are set to take effect on December 1, 2016.
Should you have any questions regarding this new guidance, or desire more detailed analysis and advice, feel free to contact us.
Overtime pay is changing: What Is Changing
The U.S. Department of Labor has posted its final overtime rule. The Final Rule updates the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt, in particular it:
• Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker); and
• Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004)
Automatic Updates and Salary Basis Test
• Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.
• Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.
Effective Date
The new rule takes effect Dec. 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

One S. Limestone Street, Suite 800 • P.O. Box 1488 • Springfield, Ohio 45501-1488 •
Tel 937.324.5541 • Fax 937.325.5432 • www.martinbrowne.com