Close your eyes. You’ve recently been in a horrific car accident that left you paralyzed in all four limbs and your torso. After several months of physical therapy and pain management, adapting to the loss of sensation and control, you’ve finally become accustomed to a new lifestyle. You’re coping with the pain you experience caused by frequent leg spasms – common with quadriplegia – with medicinal marijuana prescribed by your physician and legal to use in your state. You finally make it back to work – except you’re in a new position now working as a customer support representative in a call center – and you’re managing to get by despite not using any pain management during the day while on the job. Everything is going well, until one day you’re terminated for failing a random drug test. You explain the situation to your employer. You provide medical records and proof of your prescription. You explain that the practice is legal. It doesn’t matter, though, because your employer has a “Drug Free Workplace” policy, which means that they can lawfully restrict your off-duty activities. You’re left with a seemingly impossible predicament – lose your job, find a new job, or live in excruciating pain. Open your eyes.
While this scenario may seem far–fetched, it is precisely what happened to Brandon Coats. His case, Coats v. Dish Network, went to the Colorado Supreme Court, which ruled that because marijuana, which was legal in the state of Colorado, was still illegal under the federal Controlled Substances Act, its use was not a “lawful” activity and could be restricted by employers.[i]
Marijuana for medical use is now legal in Ohio. The new statute, which became effective in September, permits the use of medicinal marijuana prescribed by a physician for twenty-three “qualifying medical conditions” under the Act.[ii] It also establishes a medical marijuana control program under the Department of Commerce and the state board of pharmacy to provide for licensure of medical marijuana cultivators, processors, and retail dispensaries, as well as registration of patients and their caregivers who can legally purchase medical marijuana under the Act. The medical marijuana advisory committee will adopt rules establishing standards and procedures for licensure and registration. However, the control program and standards will not be fully established or implemented until 2018.
The Act is not without limitations on the medical use and possession of marijuana. Specifically, it permits oils, edibles, patches, and vaporizers, but prohibits smoking or any method that would be considered attractive to children. Thus, marijuana lollipops are not an option. Moreover, a registered user may not possess more than a ninety-day supply at any given time and may not operate a vehicle while under the influence of medical marijuana.
Restrictions on use are not exclusively limited by the statute. The Act allows employers to enforce drug–free workplaces with zero–tolerance policies, which means that an employer may discharge, discipline, or refuse to hire a person based on that person’s use or possession of medical marijuana. An employer is not required to accommodate an employee’s use of medical marijuana, even when that use occurs exclusively outside of work. Thus, a person terminated due to medical marijuana use may be considered to have been discharged for just cause and therefore ineligible to receive unemployment benefits. Similarly, if an employee is injured at work while under the influence of marijuana, the employee may be ineligible for workers’ compensation benefits.
Furthermore, despite being legalized by Ohio statute, marijuana is still considered a “Schedule I” controlled substance under the federal Controlled Substance Act, making its possession or use a violation of federal law.[iii] Thus, prescription or not, marijuana use is illegal under federal law. For simple possession, a person who violates federal law prohibiting marijuana use may be sentenced to one year in prison and fined a minimum of $1,000.[iv] Subsequent offenses, possession of greater amounts, and trafficking involve substantially higher penalties. However, in 2013, Deputy Attorney General James M. Cole issued a Memorandum and Guidance Regarding Marijuana Enforcement, which outlines federal priorities concerning the enforcement of the Controlled Substances Act.[v] The “Cole Memo,” as it is known, instructs federal law enforcement to rely on state and local agencies to address local marijuana activity, noting that “the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property.”
Although the federal government takes a hands–off approach to enforcement at local and state levels, the Cole Memo directive does not change the fact that medical marijuana use remains illegal under federal law and can quickly become reinforced at all levels of law enforcement if a new administration makes its enforcement a priority. Although enforcement at local and state levels is not currently a priority for enforcement by the federal government, it does not take such a hands-off approach when marijuana is transported between states, used on federal property, or purchased from criminal enterprises.
This raises important questions and considerations of Ohio’s new medical marijuana law. Given that cultivators and retailers will not have licenses to distribute medical marijuana for at least two years, Ohioans are forced to go across state lines to purchase marijuana from a state that permits medical marijuana. Michigan is one such state; however, Michigan requires an identification card to obtain marijuana, which Ohio’s medical marijuana control program does not yet support. If an Ohioan were to travel to Colorado to obtain marijuana without restriction, the person would violate federal law (and presumably several states’ laws) in transporting the marijuana through states where it is not legal to possess marijuana. If an Ohioan resorts to the black market, he or she risks violating a federal law that the Department of Justice has pronounced as a priority offense. None of these questions have easy solutions. Only time – and the full establishment and implementation of Ohio’s medical marijuana control program – will provide answers to Ohio’s growing population of medical marijuana users and those who employ them.
[i] Coats v. Dish Network, Case No. 13SC394, 2015–CO–44 (Colo. 2015).
[ii] See H.B. 523, 131st Gen. Assemb., Reg. Sess. (Ohio 2016).
[iii] 21 U.S.C. § 812(c).
[iv] 21 U.S.C. § 544(a).
[v] Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys (Aug. 29, 2013), available at /iso/opa/resources/3052013829132756857467.pdf.
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