Massachusetts State Court Rejects Medical Marijuana Suit

In another win for employers with regard to medical marijuana use by employees, a Massachusetts state court rejected a former employee’s legal claims under the state’s medical marijuana law. Barbuto v. Advantage Sales and Marketing, LLC, et al., No. 15-02677 (Mass. Sup. Ct. May 31, 2016).

The plaintiff, Christina Barbuto, possessed a valid medical marijuana prescription under Massachusetts law to treat Crohn’s disease. When her employer, Advantage Sales and Marketing, LLC (“ASM”), terminated Barbuto’s employment after testing positive for marijuana, she then brought suit alleging: (1) disability discrimination/failure to accommodate in violation of Massachusetts law; (2) invasion of privacy; (3) termination in violation of public policy; and (4) claims that ASM violated Massachusetts’ medical marijuana statute.

In deciding whether an accommodation for medical marijuana was required, the Superior Court looked at the plain language of the medical marijuana statute at issue, as well as the state’s anti-discrimination statute generally, to conclude that there was no obligation under state law to accommodate such marijuana use. In reaching this conclusion, the Superior Court also noted federal precedent holding that disability discrimination does not extend to medical marijuana use because such use remains illegal under federal law.  Moreover, the Court held that the Massachusetts medical marijuana law provided no private right of action to employees, and that there was no clear public policy that would prevent an employer from discharging an employee who uses medical marijuana.

The Court did not, however, dismiss Barbuto’s invasion of privacy claim. In Massachusetts, courts will balance an employee’s privacy rights against the employer’s competing interest to determine whether employees are using drugs.  In general, employers do not violate employees’ privacy rights when the testing is being conducted to maintain workplace safety.  Here, Barbuto alleged that the drug test was unreasonable and inappropriate, given her job duties (which were not identified in the decision) and the type of business in which ASM is engaged.

While this decision is welcome news for Massachusetts employers, it also highlights that an employer must ensure that its drug and alcohol testing policy complies with all applicable laws. In states with privacy rights in the context of workplace drug testing, employers should not conduct “suspicion-less” testing such as post-accident testing and random testing, unless the employees to be tested are “safety-sensitive,” i.e., their job duties pose a threat to the health or safety of themselves or others if they were to perform the job while impaired by drugs or alcohol.

Eight States Will Vote On New Marijuana Laws On Election Day 2016

Currently, twenty-five states and the District of Columbia have medical marijuana laws, while four states and the District of Columbia have legalized marijuana for recreational use.  On Election Day 2016, eight more states will consider adopting such laws.  Here is a brief summary of those proposed laws, focusing on the implications for employers:

Medical Marijuana

  1. Arkansas – The Arkansas Medical Cannabis Act would allow the medical use of marijuana by patients who suffer from qualifying medical conditions. The law does not permit a qualifying patient to be “denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for medical use of cannabis in accordance with [the law].” In addition, “[a]n employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status as a Qualifying Patient.” However, the law does not require an employer to accommodate the use of marijuana in the workplace or to permit an employee to work while under the influence of marijuana. The law also prohibits undertaking any task while under the influence of marijuana “when doing so would constitute negligence or professional malpractice,” and further prohibits the operation of a vehicle while under the influence of marijuana.
  2. Florida – In Florida, a proposed constitutional amendment provides that individuals with certain debilitating medical conditions may use marijuana as prescribed by a physician. The law does not require employers to permit the use of marijuana in the workplace, and prohibits the operation of a vehicle while under the influence of marijuana.
  3. North Dakota – The North Dakota Compassionate Care Act would permit marijuana use by patients with debilitating medical conditions. The law states that medical marijuana users are not relieved from criminal prosecution or civil penalty for possession, use, distribution or transfer of marijuana in the workplace. In addition, medical marijuana users are not relieved from liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of marijuana.

Recreational Marijuana

  1. Arizona – Arizona’s Regulation and Taxation of Marijuana Act seeks to treat marijuana in a manner similar to alcohol. The law would permit individuals 21 and older to possess or use up to one ounce of marijuana and to possess up to six marijuana plants. However, the law does not require an employer to allow or accommodate the possession or consumption of marijuana or marijuana products in the workplace and does not affect the ability of an employer to enact and enforce workplace policies restricting the consumption of marijuana and marijuana products by employees. The law also does not prevent the imposition of civil or criminal penalties for operating a vehicle while under the influence of marijuana, or engaging in any task while impaired by marijuana that would constitute negligence or professional malpractice. But employers should take note that the law also states: “a person may not be penalized in this state for an action taken while under the influence of marijuana or a marijuana product solely because of the presence of metabolites or components of marijuana in the person’s body or in the urine, blood, saliva, hair or other tissue or fluid of the person’s body.”
  2. California – California’s Proposition 64, the Adult Use of Marijuana Act, would legalize the non-medical use and possession of up to one ounce of marijuana, up to 6 marijuana plants, and up to 8 grams of concentrated marijuana products for those 21 and older. The law states that it does not alter or amend the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace and to have policies prohibiting the use of marijuana by employee and applicants. The law further does not require employers to permit or accommodate the use of marijuana in the workplace, or prevent employers from complying with state or federal law. Smoking or ingesting marijuana is prohibited in public or while driving or riding in a vehicle.
  3. Maine – Maine’s Marijuana Legalization Act would permit individuals 21 and older to use and possess up to 2-1/2 ounces of marijuana and accessories, and to cultivate plants in the home, among other things. The law states that it does not require employers to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of marijuana in the workplace. In addition, the law will not impact an employer’s ability to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. Despite that language, however, the law prohibits employers from refusing to employ a person solely because that person consumed marijuana outside the employer’s property.
  4. Massachusetts – Massachusetts’ The Regulation and Taxation of Marijuana Act would permit individuals 21 and older to use or possess up to one ounce of marijuana, keep up to 10 ounces of marijuana at home, and to cultivate up to six marijuana plants. The law does not require an employer to permit or accommodate conduct allowed by the law and does not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees. The law also does not amend existing penalties for the operation of a vehicle or machinery while impaired by marijuana or marijuana products, or for performing a task while impaired by marijuana that would constitute negligence or professional malpractice.
  5. Nevada – Nevada’s Regulation and Taxation of Marijuana Act would permit individuals 21 and older to use or possess up to one ounce of marijuana, and possess or cultivate up to 6 marijuana plants. The law does not prohibit a public or private employer from maintaining, enacting and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under the law. Additionally, the law does not prevent the imposition of any civil or criminal penalty for operating a vehicle while impaired by marijuana, or undertaking any take under the influence of marijuana that constitutes negligence or professional malpractice.

Even if all of these laws pass on Election Day, the legal landscape for employers will not change very much, particularly because marijuana still is illegal under federal law.  In most states, employers still are permitted to implement policies prohibiting the use of marijuana and may take adverse actions against those who use marijuana, even for medical reasons.  However, an increasing number of states are enacting laws prohibiting discrimination against medical marijuana users, and now it appears that at least two states – Arizona and Maine – are proposing laws that would provide workplace protections to recreational marijuana users in certain circumstances.  Employers should follow the Election Day results carefully and review their drug and alcohol testing policies to determine whether any modifications are required.

DEA Classifies U-47700, or “Pink”, As A Schedule I Drug

The Drug Enforcement Administration (“DEA”) announced September 7, 2016 that it intends to temporarily schedule the synthetic opioid known as U-47700 on Schedule I of the federal Controlled Substances Act because it poses an imminent hazard to the public safety. A final scheduling order will be made on or after October 7, 2016.  Schedule I drugs are drugs that have a high potential for abuse, no currently accepted medical use in treatment in the U.S., and a lack of accepted safety for use under medical supervision.

U-47700 is a synthetic opioid with morphine-like properties, and is commonly known as “pink” or “pinky.”  Although it has not been approved for human consumption, it is available on the internet, primarily from Chinese suppliers.  It has been growing in popularity with recreational drug users but the substance can be toxic even in small doses.  A number of states, including Ohio, Georgia and Wyoming, have made the drug illegal.

The DEA stated that it is aware of at least 15 confirmed fatalities resulting from the use of U-47700, but as many as 50 deaths have been reported nationwide as linked to the drug.  Only a few days after the DEA’s scheduling announcement, two 13-year-olds died in Utah on September 13, 2016. Local law enforcement believes their deaths are related to U-47700 and has warned the public because the drug is cheap and easily obtained on the internet.

New Survey Shows Positive Workplace Drug Test Results Are On The Rise, Especially For Heroin, Marijuana and Amphetamines

According to a new study published by Quest Diagnostics today, positive workplace drug test results have been increasing steadily every year since 2011, and made up 4% of all workplace drug test results in 2015.  The Quest Diagnostics Drug Testing Index — an annual survey of workplace drug test results — examined nearly 11 million drug test results in 2015. Some of the most significant findings of the survey include:

  • The rate of amphetamine, marijuana and heroin detection has increased every year for the past five years.
  • 45% of all U.S. workers who tested positive in 2015 showed evidence of marijuana use.
  • Positive test results for heroin increased 146% over the last four years, while positive test results for oxycodone decreased slightly.
  • Amphetamine positivity increased 44% since 2011.
  • Marijuana positivity increased 26% since 2011.
  • Post-accident positivity rates have increased 30% since 2011.
  • In oral fluid drug testing, the overall positivity rate increased 47% since 2011, driven primarily by large increases in positive marijuana results.
  • 9% of job applicants could not pass a pre-employment hair drug test in 2015.

Employers should take note of these statistics and ensure that their drug and alcohol testing policies address these issues adequately. Among other things, employers should ensure that their drug testing procedures include testing for the presence of 6-acetylmorphine to detect heroin.  Additionally, the increase in positive post-accident test results should concern employers and should prompt a review of post-accident drug and alcohol testing practices.  Finally, although the public continues to embrace medical marijuana and many states are moving to legalize marijuana use recreationally, this survey shows that marijuana use is increasing and will continue to be a problem in the workplace.

Bus Mechanic Who Uses Adderall for ADHD Can Proceed with Disability Discrimination Claims

A federal district court in the District of Columbia has allowed a bus mechanic to proceed with claims of disability discrimination and retaliation, after he was fired for using Adderall to treat Attention Deficit Hyperactivity Disorder (“ADHD”). McFadden v. Washington Metropolitan Area Transit Authority, CV-12-940 (D.D.C. September 2, 2016).

McFadden was hired by WMATA as a bus mechanic in October 2008 and was subject to the regulations of the U.S. Department of Transportation (“DOT”). In 2009, he was diagnosed with ADHD and was prescribed the drug Adderall “to increase his focus and concentration.”  Pursuant to a policy forbidding employees in safety-sensitive positions from using amphetamines, WMATA prohibited McFadden from working as a bus mechanic while taking Adderall, and suspended his employment after he tested positive for use of the drug.  He later was fired but was reinstated under an agreement with his union.  McFadden then filed a lawsuit.

The Court denied WMATA’s motion for summary judgment as to the disability discrimination claim, holding that there were genuine issues of material fact concerning whether the use of Adderall actually compromises safety and whether WMATA instructed McFadden to obtain certification from his physician to use Adderall while on duty. Moreover, the evidence showed that McFadden was more accident-prone before he started taking Adderall.

DOT-regulated employers must follow carefully the regulations addressing drivers’ use of prescription medications. A driver’s physician may provide a letter stating that it is safe for the driver to use the medication, but the DOT medical examiner then must review and make his own judgment.  In the non-DOT context, employers should not have blanket policies prohibiting the use of certain drugs by employees, as such a policy could lead to claims under the Americans with Disabilities Act and comparable state laws.

FDA Warns Against Mixing Opioid Medications and Benzodiazepines

As part of the federal government’s efforts to address the opioid abuse epidemic, the U.S. Food and Drug Administration (“FDA”) issued a safety announcement on August 31, 2016, advising against the mixture of opioid medications and benzodiazepines. Specifically, a FDA review found that combining opioid medicines with benzodiazepines or other drugs that depress the central nervous system has resulted in serious side effects, including slowed or difficult breathing and deaths.

Opioids are a class of powerful narcotic medicines that are used to treat severe pain. Opioids such as codeine and hydrocodone also are approved in combination with other medicines to reduce coughing. They also have serious risks including misuse and abuse, addiction, overdose, and death. Benzodiazepines are a class of medicines that are widely used to treat conditions including anxiety, insomnia, and seizures (for example, Xanax, Valium, Ativan and Klonopin).  The FDA conducted and reviewed several studies showing that serious health risks are associated with the combined use of opioids and benzodiazepines, as well as other drugs that depress the central nervous system or alcohol.

In an effort to decrease the use of opioids and benzodiazepines, or opioids and other central nervous system depressants together, the FDA is adding Boxed Warnings – its strongest warnings — to the drug labeling of prescription opioid pain medications, prescription opioid cough medicines, and benzodiazepines (nearly 400 products in total).  This type of warning is intended to call attention to serious or life-threatening risks.  The specific risks include extreme sleepiness, respiratory depression, coma and death. Additional changes include revisions to the Warnings and Precautions, Drug Interactions, and Patient Counseling Information sections of the labeling.

The FDA’s data review showed that physicians have been increasingly prescribing opioids and benzodiazepines together, and this has been associated with adverse outcomes. Among the data reviewed by the FDA, the agency concluded that from 2004 to 2011, the rate of emergency department visits involving non-medical use of both drug classes increased significantly, with overdose deaths (from taking prescribed or greater than prescribed doses) involving both drug classes nearly tripling during that period. Additionally, the number of patients who were prescribed both an opioid analgesic and a benzodiazepine increased by 41 percent between 2002 and 2014, which translates to an increase of more than 2.5 million opioid analgesic patients receiving benzodiazepines.

DEA Intends to Classify Kratom as a Schedule I Drug

The Drug Enforcement Administration (“DEA”) announced August 30, 2016 that it intends to add the opioids Mitragynine and 7-Hydroxymitragynine, also known as Kratom, to the list of Schedule I drugs under the federal Controlled Substances Act because Kratom poses an imminent hazard to public safety.

Kratom is a tropical tree indigenous to Thailand, Malaysia, Myanmar, and other areas of Southeast Asia. Its leaves are used to derive psychoactive pain-relieving ingredients, Mitragynine and 7-Hydroxymitragynine, which are believed to affect the brain similarly to heroin.  Kratom is available in dried/crushed leaves, powder, liquid, capsules, tablets and gum/resin.  Its effects have been reported as feelings of stimulation, euphoria, sedation, and pain relief.  However, nausea, weight loss, dizziness and vomiting have also been associated with the drug.  Kratom’s recreational use has increased dramatically in the past few years and it is often marketed as a legal alternative to controlled substances.

According to the DEA, Kratom has a long history of abuse in Southeast Asia and more recently in the U.S. In fact, studies have shown that Kratom is often misused to self-treat chronic pain and heroin withdrawal symptoms.  In addition, because users obtain Kratom through unknown and unregulated sources, the identity and purity of the substances is uncertain and therefore poses a significant health risk to users. The Center for Disease Control found that Kratom abuse leads to agitation, irritability, tachycardia,  nausea, drowsiness, and hypertension. Health risks found in Kratom abusers include hepatotoxicity, psychosis, seizure, weight loss, insomnia, tachycardia, vomiting, poor concentration, hallucinations, and death. The DEA is aware of 15 Kratom-related deaths between 2014 and 2016.

Kratom does not have an approved medical use in the U.S. and has not been studied for treatment purposes, according to the Food and Drug Administration. Furthermore, there are no approved new drug applications or investigational drug applications for Kratom.  Therefore, the DEA determined that Kratom poses an imminent hazard to public safety.

Because the DEA has received evidence to support a finding that Kratom has a high potential for abuse, lacks any accepted medical use and accepted safety for use under medical supervision, it will proceed with scheduling Kratom as a Schedule I substance. As a result, Kratom will become subject to regulatory controls and administrative, civil and criminal sanctions applicable to the manufacture, distribution, importation, research and possession of a Schedule I controlled substance.

Connecticut Public Policy Did Not Mandate Termination of Pot-Smoking Public Maintenance Worker

According to Connecticut’s highest court, the public policy of the state did not require the termination of a state employee who was caught smoking marijuana during work hours.  State of Connecticut v. Connecticut Employees Union Independent, (SC 19590) August 19, 2016 (official release date August 30, 2016).  Gregory Linhoff, a skilled maintenance worker at the University of Connecticut Health Center, was terminated after a police officer observed him smoking marijuana from a glass pipe in a state van with the door open.  Linhoff admitted smoking marijuana and surrendered about three quarters of an ounce of the drug.  He was terminated for violating the Health Center’s drug and alcohol policy as well as its smoke-free workplace policy.  In particular, the Health Center did not believe that Linhoff could be trusted to perform his duties independently on the evening shift, when he had keys to most of the buildings on the health center campus.  Linhoff and his union grieved the termination.

Linhoff was a 15-year employee with no prior performance problems.  At the grievance arbitration, Linhoff testified that he sought and completed treatment through the Health Center’s employee assistance program.  The arbitrator determined Linhoff engaged in misconduct.  However, the arbitrator concluded that termination was too harsh a penalty, citing Linhoff’s positive work history and the Health Center’s drug-free workplace policy, which permitted termination but did not mandate it.  Although Linhoff’s job duties raised some safety and security issues, the arbitrator did not believe that Linhoff posed a danger in the workplace.  The arbitrator modified the discipline to include a six-month, unpaid suspension and unannounced follow-up drug testing for one year.  A trial court granted the Health Center’s application to vacate the award on public policy grounds.

The Connecticut Supreme Court acknowledged the public policy exception to arbitral authority should be narrowly construed.  The Court also recognized Connecticut’s “well-defined and dominant” public policy against the possession and recreational use of marijuana in the workplace.  The Court then analyzed the four factors set forth in Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, 114 A.3d 114 (Conn. 2015), to determine whether this public policy required the Health Center to terminate Linhoff: (1) guidance from statutes, regulations, and other sources of the public policy at issue; (2) whether the public safety or the public trust is implicated by the employment at issue; (3) the “relative egregiousness” of the conduct; and (4) whether the employee is “incorrigible.”

Emphasizing that the relevant statutes and regulations allowed an “array of responses” to drug-related employee misconduct, and that Linhoff’s maintenance duties did not create a safety risk to the general public, the Court held that public policy did not mandate termination.  Additionally, the Court reiterated that judicial second-guessing of arbitral awards reinstating employees is very uncommon and reserved for extraordinary circumstances.  Finally, the Court stated that the employer was free to negotiate with the union to mandate termination after misconduct such as that at issue in this case.

DEA Denies Petitions To Reschedule Marijuana But Will Authorize More Marijuana Manufacturing To Foster Research

The federal Drug Enforcement Administration announced August 11, 2016 that it denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In addition, DEA announced a policy change designed to foster research by expanding the number of DEA-registered marijuana manufacturers, and issued a statement of principles concerning industrial hemp.

The CSA categorizes drugs into five categories depending on the drug’s acceptable medical use and the drug’s abuse or dependency potential. Schedule I drugs are defined as drugs with no currently accepted medical use and a high potential for abuse.  Schedule I drugs are considered the most dangerous and include marijuana, heroin, LSD and Ecstasy, among others.  Schedule II drugs are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence.  Schedule II drugs include Vicodin, OxyContin, Demerol, cocaine, and methadone, among others.

In a letter dated August 11, 2016, Chuck Rosenberg, Acting Administrator of the DEA, explained that the CSA drug schedules do not constitute an “escalating ‘danger’ scale,” but rather, scheduling is determined by specific, statutory criteria based on medical and scientific evidence. Under the CSA, the Food and Drug Administration, in consultation with the National Institute on Drug Abuse, reviews, analyzes and assesses the medical and scientific data.  The FDA and DEA then make a determination based on a full review of the relevant scientific and medical literature regarding marijuana.

Marijuana Remains a Schedule I Drug.

In response to two petitions (submitted in 2009 and 2011) that sought to downgrade marijuana from a Schedule I drug to a Schedule II drug, Acting Administrator Rosenberg stated that marijuana will remain a Schedule I drug because the research does not yet support a reclassification. More specifically, the current medical and scientific evidence demonstrates that marijuana has no currently accepted medical use in treatment in the United States.  Acting Administrator Rosenberg stressed, however, that DEA supports legitimate medical and scientific research concerning the use of marijuana and will continue to do so.  He stated:  “If the scientific understanding about marijuana changes – and it could change – then the decision could change.”  DEA’s full responses to the petitions, including the medical and scientific data and analysis that was relied on, will be published in the Federal Register on August 12, 2016.

DEA Will Accept Applications From Marijuana Manufacturers to Grow Marijuana for Researchers.

DEA also announced a policy change whereby marijuana manufacturers may apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes. For nearly 50 years, the U.S. has relied on a single grower to produce marijuana used in federally-funded research.  Under the DEA’s new system, additional marijuana growers may apply for DEA approval to grow marijuana to supply researchers.

DEA Issues Statement of Principles on Industrial Hemp.

The U.S. Department of Agriculture, in consultation with the DEA and the FDA, announced guidelines for entities who participate in the growth and cultivation of industrial hemp under the 2014 Farm Bill which allowed for universities and state departments of agriculture to begin cultivating hemp for limited purposes. Although hemp comes from the cannabis plant – as does marijuana – it generally contains smaller amounts of the psychoactive component tetrahydrocannabinol (THC).  Industrial hemp can be used to make food, fuel, fabric, plastics, construction materials, textiles and paper, among other things. In recent years, many state legislatures have enacted laws to promote the development of industrial hemp production.  The DEA’s statement of principles is intended to clarify how federal law applies to these activities.

What This Means For Employers.

For now, the state of the law with regard to marijuana has not changed. Marijuana remains illegal under federal law, even though some states have enacted laws permitting the use of medical marijuana and recreational marijuana in certain circumstances.  Employers still are faced with deciding whether to follow federal law or to comply with state laws, particularly in those states that prohibit employment discrimination against medical marijuana users. Employers should assess the legal risks in the states in which they operate and consult with counsel to create appropriate strategies to address medical and recreational marijuana in the workplace.

Ohio’s Employer-Friendly Medical Marijuana Law Takes Effect September 6, 2016

Ohio’s new medical marijuana law becomes effective on September 6, 2016, although it may take up to two years for implementing regulations to be written and for dispensaries and the patient registry to become operational. House Bill 523, the “Ohio Medical Marijuana Control Program,” allows people with certain medical conditions, upon the recommendation of a physician, to purchase and use medical marijuana.  Qualifying medical conditions include AIDS, amyotrophic lateral sclerosis (ALS), Alzheimer’s disease, cancer, Crohn’s disease, epilepsy or seizure disorders, multiple sclerosis, chronic or intractable pain, Parkinson’s disease, and PTSD, among others.

The law allows the use of marijuana in the form of oils, edibles, plant material, tinctures, patches and vapor, but does not permit smoking of marijuana.  Patients who use medical marijuana are prohibited from operating a vehicle while under the influence of marijuana.

Of the many states that have medical marijuana laws, the Ohio medical marijuana law is one of the most employer-friendly.  Specifically:

  • Employers still have the right to establish and enforce a zero-tolerance drug policy or drug testing policy, and the new law does not give employees the right to sue their employer for taking action against them related to the use of medical marijuana;
  • Employers are not required to permit or accommodate an employee’s use, possession or distribution of medical marijuana;
  • Employers can still terminate an employee or refuse to hire an applicant because of use, possession or distribution of medical marijuana even if he or she is using marijuana off-duty and in compliance with the statute;
  • For purposes of unemployment compensation, an employer has “just cause” to fire an employee for use of medical marijuana in violation of the employer’s drug policy;
  • Employers still may obtain workers’ compensation premium discounts for participation in the state’s drug-free workplace program; and,
  • An employee may be deemed ineligible for workers’ compensation benefits if the employee was under the influence of marijuana at the time of the injury and that use was a cause of the injury, even if the marijuana use was recommended by a physician.

Employers should take this opportunity to review their drug policies to make it clear that, even though Ohio law permits the use of medical marijuana, it is not tolerated in the workplace and that disciplinary action will be taken for violations of the policy even where the marijuana was used off-duty and prescribed by a physician. This is particularly true because marijuana still is illegal under federal law.  If the U.S. Drug Enforcement Administration takes action to reschedule marijuana from a Schedule I drug to a Schedule II drug (under the Controlled Substances Act), employers may need to re-evaluate their policies to comply with the requirements of the Americans with Disabilities Act and comparable state laws.