Ohio’s medical marijuana law will soon be fully operational. Ohio employers may soon face the following situation: An employee with a valid medical marijuana user’s license is injured in a workplace accident. The employee is required to undergo a post accident drug test as a matter of standard procedure. The employee predictably tests positive because of medical marijuana in her system. Will the positive drug test bar workers’ compensation benefits even though the employee had a valid medical marijuana license under Ohio law?
Ohio has the so-called “rebuttable presumption” rule. Under that rule, which existed long before the medical marijuana law was passed, there is generally a rebuttable presumption that being “under the influence of marijuana” or other controlled substance (as revealed by a positive post-accident test) is the proximate cause of the injury. As such, the positive test can disqualify the employee from benefits. Typically, the employee may “rebut” that presumption with evidence that the substance played no role in the injury. This is usually done with a showing of other causes such as unsafe working conditions, malfunctioning equipment or guilty co-workers.
The medical marijuana law in Ohio, of course, allows for an individual with certain specified medical conditions to obtain a medical marijuana license upon “recommendation” by a physician. The rebuttable presumption law does not itself explain how it works with medical marijuana. The Ohio Bureau of Workers’ Compensation, however, has stated that the presumption law applies the same way regardless of whether marijuana use is recommended by a physician. So, as it stands currently, a positive test triggered by medical marijuana will, absent evidence of an alternative cause for the injury, disqualify an injured worker from receiving workers’ compensation benefits.
The Ohio Bureau of Workers’ Compensation has also stated that medical marijuana will not be reimbursed by the BWC as an approved medication. This would be the case even if medical marijuana were specifically recommended by a physician to treat a workplace injury. The Ohio Administrative Code makes it clear that BWC reimbursements are limited to medications approved by the Food and Drug Administration. Marijuana – even medical marijuana which is otherwise legal under state law – is not. This is because it is still a controlled substance, and therefore illegal, under federal law.
This material is not intended as legal advice and is for general informational purposes only. Those seeking legal advice should consult directly with legal counsel regarding their specific facts and circumstances.
By: Karl R. Ulrich, Esq. @ Sebaly Shillito + Dyer