A lot of confusion and misinformation still surrounds the Ohio Medical Marijuana Control Program, according to state and industry experts.
In March, the Columbus Chamber of Commerce hosted a panel discussion on the business benefits and challenges of Ohio’s medical marijuana law.
House Bill 523 authorized a basic framework — legalized medical marijuana for qualifying medical conditions, but prohibited its use by smoking or combustion — and made Ohio one of 28 states to establish a public medical marijuana program. But it left state agencies to establish specific rules and guidelines.
At this point, the Ohio Department of Commerce, State of Ohio Board of Pharmacy and State Medical Board of Ohio have written seven relevant rule sets. These rules —and all other pertinent information — can be found at medicalmarijuana.ohio.gov.
The rules will be finalized by Sept. 8. The state agencies have tried to be transparent and flexible with as much public input as possible, while keeping to strict deadlines, says Missy Craddock, policy staff member for the Office of Gov. John Kasich.
The MMCP likely won’t become operational until Sept. 8, 2018.
Ohio employers have some of the broadest protections in the country, says Michael Griffaton, of counsel at Vorys, Sater, Seymour and Pease LLP, who played an integral role in drafting the medical marijuana legislation.
“House Bill 523 expressly states that employers do not have to accommodate medical marijuana use, even if the employees’ physician recommends that the employee use medical marijuana,” he says.
An employer can refuse to hire, discharge, discipline or take adverse employment action for a person’s use, possession or distribution of medical marijuana. In addition, that person may not sue the employer for doing so.
But that doesn’t mean hiring managers should ask about medical marijuana during a job interview, Griffaton says. Disability discrimination is still illegal. If someone is using medical marijuana for cancer, it raises questions.
“Did he not hire them because they used medical marijuana or because it’s a disabling protected condition under the American Disabilities Act? Employers are going to open themselves up to discrimination charges and lawsuits, because of that question, so be careful about asking,” he says.
Griffaton also has seen cases where employers terminated people that used medical marijuana — and that ended up being only minority members of the workforce.
“Carefully consider whether or not taking adverse action against someone who uses medical marijuana could lead to other claims,” he says.
Employers need to apply their workforce policies clearly and consistently, especially if they operate in multiple jurisdictions that have different state laws, Griffaton says.
In Ohio, if someone’s termination violates the employer’s expressed policy regarding medical marijuana, that person isn’t eligible for unemployment compensation. Also, employers don’t have to pay for medical marijuana under workers’ compensation.
The state-issued licenses for cultivation, processing, laboratories and dispensaries will be tied to real estate.
Landlords need to consider things like cannabis-related termination provisions, how much cash can be kept onsite, security, indemnification, inspections, etc.
“From a landlord’s perspective, you don’t want to be in a position where you’re leasing to, let’s say, a dispensary and all of the sudden they lose their license,” says Bret Kravitz, an associate at Dickinson Wright PLLC, who works with the firm’s corporate practice group and leads the firm’s cannabis working group.
Not only are you in violation of federal laws, you’re also now running afoul of the state laws — it’s a position you don’t want to be in, he says.
Entrepreneurs and investors
Entrepreneurs, investors and companies of all sizes see opportunities, but there are risks, too. Kravitz’s firm has received calls from soil, chemical and lighting companies, to name a few, asking for more information.