On June 8, 2016, Ohio Governor John Kasich signed House Bill 523 (“HB 523”), making Ohio the 25th state to legalize marijuana for medical use. HB 523 will become law September 6, 2016, just in time for the start of the school year. The passage of HB 523 into law has left many boards of education wondering how the legalization of medical marijuana will affect the operations of their school districts. By familiarizing themselves with the law, board members, and superintendents will be better able to address the potential challenges that lay ahead.
Medical Marijuana Law Basics
HB 523 authorizes a licensed physician to prescribe medical marijuana to a person diagnosed with one or more of the following conditions: AIDS, amyotrophic lateral sclerosis, Alzheimer’s disease, cancer, chronic traumatic encephalopathy, Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is either chronic and severe or intractable, Parkinson’s disease, positive status for HIV, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, and ulcerative colitis. However, HB 523 permits only the following forms of medical marijuana: oils, tinctures, plant material, edibles, patches, and any other form approved by the Ohio Board of Pharmacy. The law expressly prohibits the use of medical marijuana by smoking or combustion, but allows for vaporization.
HB 523 prohibits any form or method of marijuana consumption considered attractive to children. However, a minor may become a medical marijuana patient, although it is less likely that a minor would have one of the diseases or medical conditions listed above. A physician may recommend treatment with medical marijuana for a minor only after obtaining the consent of the minor patient’s parent or other person responsible for providing consent to treatment.
Patients and Caregivers Must Be Registered
A patient seeking to use medical marijuana or a caregiver seeking to assist a patient in the use of medical marijuana must apply to the Ohio Board of Pharmacy for registration. The physician who holds a certificate to recommend medical marijuana issued by the State Medical Board of Ohio and is treating the patient must submit the application on the patient’s or caregiver’s behalf in the manner established in rules adopted by the Ohio Board of Pharmacy. If the application is complete and meets the requirements established in rules, the Ohio Board of Pharmacy must register the patient or caregiver and issue to the patient or caregiver an identification card which can be used to obtain medical marijuana. The law authorizes a registered patient or caregiver to use or possess medical marijuana or possess any paraphernalia or accessories specified in Ohio Board of Pharmacy rules. The amount of medical marijuana possessed by a registered patient or caregiver must not exceed a 90-day supply.
Legal Protections for Medical Marijuana Users
The law provides that a registered patient or caregiver is not subject to arrest or criminal prosecution for any of the following actions done in accordance with the law’s provisions:
(1) In the case of a registered patient, using medical marijuana;
(2) Obtaining or possessing medical marijuana;
(3) Possessing specified paraphernalia or accessories;
(4) In the case of a registered caregiver, assisting a registered patient in the use or administration of medical marijuana.
Further, the law establishes for a patient, under specified conditions, an affirmative defense to a criminal charge of knowingly obtaining, possessing, or using marijuana and to a criminal charge of knowingly using or possessing marijuana drug paraphernalia.
Property Tax Implications and Proximity to School
The law specifies that land on which medical marijuana is cultivated or processed does not qualify for current agricultural use valuation (“CAUV”) for property tax purposes. Instead, such land would be taxed based on fair market value (i.e., the price that a seller is willing to accept and a buyer is willing to pay on the open market). This could result in a beneficial tax outcome for school districts if property within a district is used for marijuana cultivation, because the CAUV method usually results in a lower tax bill for farmland owners, and because the land is often valued below its actual market value. Further, the law prohibits a cultivator, processor, retail dispensary, or laboratory from being located within 500 feet of a school, church, public library, public playground, or public park.
Employers Can Still Prohibit the Use of Medical Marijuana
While HB 523 legalizes the use of marijuana for medicinal purposes, it does not affect an employer’s authority to prohibit marijuana use, regardless of the criminal prosecution for such use. Specifically, the law does not do any of the following:
(1) Require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
(2) Prohibit an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana;
(3) Prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
(4) Interfere with any federal restrictions on employment, including U.S. Department of Transportation regulations;
(5) Permit a person to sue an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;
(6) Affect the authority of the Administrator of Workers’ Compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program established in accordance with rules adopted by the Administrator.
Finally, the law maintains the rebuttable presumption that an employee is ineligible for workers’ compensation if the employee was under the influence of marijuana, and being under the influence of marijuana was the proximate cause of the injury, regardless of whether the marijuana use is recommended by a physician. Thus, HB 523 maintains a board of education’s authority to operate a drug-free workplace and to discharge and/or not hire an employee or applicant who does not comply with that policy.
Revisions to Board Policy
Now is a good time for boards of education to clarify their policies governing the use of marijuana so as to preempt any potential abuses before the law takes effect in early September. For instance, many Board policies use the terms “unlawful” or “illegal” drugs in reference to banned substances. Starting September 6, 2016, the possession or use of marijuana by an individual with a prescription for the drug would no longer fit that description. Boards may be better served by use of the term “controlled substances” rather than “unlawful” or “illegal” drugs, because marijuana, whether prescribed or not, is still considered a controlled substance under the Controlled Substances Act, 21 U.S.C. §802.
With the legalization of medical marijuana and the start of the 2016-2017 school year only a few weeks away, it is important for Board members, employees and students to be aware of their rights and responsibilities. As such, it is recommended that meetings and orientations at the beginning of the school year include an update on the law and any change to the district’s policies or procedures regarding the use and possession of marijuana.