by Jon M. Casey

Increasing numbers of states are legalizing the private medical and recreational use of Marijuana. West Virginia was the latest to sign it into law in mid-April, 2017. Thirty states now have medical marijuana laws. Nineteen of those plus Washington, D.C. have operating dispensaries. Eight of the states plus Washington, D.C. have recreational use laws and four of the states have operating retail marijuana stores. Nevertheless, workplace guidelines remain strict.

Marijuana laws are very “state specific” said Mark Shaw, Esq., attorney with Eastman & Smith, Ltd., at the Northeast Mine Safety and Health Conference in Columbus, OH in early April. Noting that he and his associate and co-speaker, Melissa Ebel, Esq., were not attempting to make a political statement, they were simply making attendees aware of what is taking place in the nation.

Shaw said at the federal level, marijuana use is still illegal nationally and that it is a Schedule 1 narcotic. He said there is still some question as to how the federal government will enforce these laws because there is a new administration with a new Attorney General, Jeff Sessions, who has frequently spoken of the negative effects of marijuana use.

As one example, Shaw said that the Ohio State House Bill 523 created the Medical Marijuana Control Program, however it only permits patients to use the substance when prescribed by a physician and for restricted permissible uses. Four of the twenty qualifying conditions within the legislation are Cancer, Alzheimer’s disease, Glaucoma and Parkinson’s disease. More importantly, smoking marijuana is still illegal, however vaporizing it is permissible. He said that currently, there is considerable, ongoing rule making as to how this fairly new law will be implemented and that it will be fall of 2018 before all of the guidelines will be in place.

Melissa Ebel continued on this topic focusing on regulations in several of the states represented at this conference. She said that Ohio’s Revised Code 3796.28 still provides that employers do not have to permit their employee’s use, possession or distribution of the substance. Employers may discipline, discharge, refuse to hire or otherwise take adverse action because of employee’s use, possession or distribution of the material. Employers may also establish drug policies including a drug-free workplace and a zero tolerance drug policy. Additionally, when firing employees for this reason, unemployment compensation can be denied to the worker for “just cause” since they violated the company’s drug-free or zero-tolerance policies. The employee will have no private right of action because of his use of marijuana on the job. Meanwhile, many other states go to greater lengths to protect the employee who uses medical marijuana, while Ohio does not.

Ebel continued with a more detailed discussion about how the drug will be dispensed and regulated in several of these states. She touched on how employer and employees will interact when the laws are fully implemented. This is especially true if the company policies include how marijuana use is covered in the workplace and what will take place when the user is under the influence, even when administered by a physician with a prescription.

She said Indiana has the strictest laws regarding marijuana. The possession of the slightest amount is cause for severe fines and other penalties. Other states like Kentucky, Maryland, New York and Pennsylvania have a number of differing laws that allow everything from growing your own plants to variations of how much of the drug is allowed to be in a person’s possession at any given time. These states allow medical marijuana in some forms, but not all.

New York has had a medical marijuana law since July 2014. The first dispensary opened in January 2016. Their law doesn’t allow for plant usage but only allows products made by certain laboratories. The restrictions are strict and only about 10,000 residents have been approved for use thus far. Employees are protected when using medical marijuana more than in some states however there are some clauses in the regulations that point toward the mining industry to be somewhat exempt from this protection, but not specifically. Further clarification will need to be made in the coming months.

Pennsylvania passed their law allowing medical use in 2016. Like the state of Ohio, Pennsylvania doesn’t allow smoking it. Much of the law is not operational as yet. There are significant protections for employees in Pennsylvania. The State Auditor General is pushing for recreational marijuana usage as a way to raise tax revenue to help offset the state’s deficits. His estimates suggest that annual tax revenue would approach $200 million if recreational use were legalized. It remains to be seen how this will progress. For more information on this topic from Shaw or Ebel contact them at Eastman & Smith, Ltd., at mashaw@eastmansmith.com or maebel@eastmansmith.com.