Ohio Medical Marijuana and the Apartment Industry

As of September 8, 2016, it is legal for Ohio residents with certain medical conditions to use non-smoking forms of medical marijuana when recommended by an eligible physician

What forms of medical marijuana are permitted in Ohio? Several forms of medical marijuana are permitted in Ohio. They are: Inhalation of marijuana through a vaporizer (not direct smoking) Oils Tinctures Plant material Edibles Patches Any other forms approved by the State Board of Pharmacy

Ohio Revised Code “ORC” 3796 Ohio Revised Code “ORC” 3796.06 Ohio Administrative Code “ORC” 3796:8-2-01 Marijuana Forms & Methods of Administration

Don’t Ask Don’t Tell

ORC 3796.24(F) OHIO’S MEDICAL MARIJUANA LAW LANDLORD-TENANT “Notwithstanding any conflicting provision of the Revised Code, a person’s status as a registered patient or caregiver shall not be used as the sole or primary basis for rejecting the person as a tenant unless the rejection is required by federal law”

3796:8-2-01 Authorized medical marijuana forms and methods of administration “(B) the following limitations apply to vaporizing devised used to administer medical marijuana: (1) no vaporizing device, the design of which places medical marijuana in direct contact with the device’s heating element, may be used to vaporize the resin contained within, or an extract of, medical marijuana; (2) vaporizing devises shall not be capable of being heated to temperatures at which medical marijuana plant material will burn”

VAPING Vaping is a method of consuming marijuana where the user inhales water vapor, sometimes referred to as aerosol, produced by a vaporizer. Vaping does not combust the marijuana. Instead, they heat up the material without burning it and produce a vapor free of the carcinogens produced by burning. Vaping produces a much weaker marijuana smell than smoking.

DOES VAPING SMELL? Weakest Smell to Strongest Smell: Oil Pen Fresh Dry Herb Dab Pen Vaporizer Making Edibles Smoking

What conditions qualify for medical marijuana use in the State of Ohio? HIV/AIDS Amyotrophic lateral sclerosis (Lou Gehrig’s Disease) Alzheimer’s disease Cancer Chronic Traumatic encephalopathy Chrohns disease Epilepsy or other seizure disorder Fibromyalgia Glaucoma Hepatitis C Inflammatory bowel disease Multiple sclerosis (MS)

What conditions qualify for medical marijuana use in the State of Ohio What conditions qualify for medical marijuana use in the State of Ohio? (continued) Pain: either chronic, severe, or intractable (difficult to manage) Parkinson’s disease Post-traumatic stress disorder (PTSD) Sickle cell anemia Spinal cord disease or injury Tourette’s syndrome Traumatic brain injury Ulcerative colitis **In order for a patient to be eligible to obtain medical marijuana, a physician must make the diagnosis of one of these conditions

Ohio Medical Marijuana Law The law prohibits smoking medical marijuana or growing it at home Recreational use of marijuana is still illegal in Ohio Patients wanting to use medical marijuana must apply to the State Board of Pharmacy for a registration card. The application must be submitted on their behalf by a physician approved by the Ohio State Medical Board who possesses a certificate to recommend medical marijuana. Only those physicians who obtain this certificate will be eligible to recommend medical marijuana. The application must show that the patient has been diagnosed with a qualifying medical condition, and that a physician-patient relationship exists

FEDERAL LAW Marijuana is still illegal under federal law. The federal government regulates drugs through the Controlled Substances Act (CSA)(21 U.S.C.§ 811), which does not recognize the difference between medical and recreational use of cannabis. These laws are generally applied only against persons who possess, cultivate, or distribute large quantities of cannabis. Under Federal law, cannabis is treated like every other controlled substance, such as cocaine and heroin. The federal government places every controlled substance in a schedule, in principle according to its relative potential for abuse and medical value. Under the CSA, cannabis is classified as a Schedule 1 drug, which means that the federal government views cannabis as highly addictive and having no medical value.

FEDERALLY ASSISTED PROPERTIES On December 29, 2014, HUD reiterated that the use of marijuana (even for medical purposes) is prohibited in federally assisted properties. HUD state that Public Housing Authorities (PHAs) and owners of such housing must deny admission to those with a household member who is illegally using a federally controlled substance; any may not provide a reasonable accommodation for new tenants. For existing tenants, owners/managers must establish procedures for any lease provisions that allow the termination of assistance and tenancy for those engaging in federally illegal behavior. HUD did state that owners are not compelled to evict existing tenants, and PHAs may, on a case-by- case basis, make exceptions for users of medical marijuana that are existing tenants. The notice can be found here: http://portal.hud.gov/hudportal/documents/huddoc?id=useofmarijinmfassistpropty.pdf

Smoke-Free Housing & Reasonable Accommodations Under the Fair Housing Act. Tobacco Control Legal Consortium (Handout)

United States Court of Appeals for the Sixth Circuit Overlook Mutual Homes, Inc. v. Spencer et all, NO 3:2007cv00398 – United States District Court for the Southern District of Ohio United States Court of Appeals for the Sixth Circuit File Name 11a0061N.06-09-4036

Sixth Circuit Seventh Circuit Kentucky Wisconsin Michigan Illinois Ohio Indiana Tennessee

Plaintiff must prove all of the following elements: That the plaintiff or his associate is handicapped within the meaning of 42 USC § 3602(h); That the defendant knew or should reasonably be expected to know of the handicap; That accommodation of the handicap may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; That the accommodation is reasonable; That the defendant refused to make requested accommodation

The Sixth Circuit, however, has held that an accommodation must be necessary. See Howard v. City of Beavercreek, 276 F.3d 802 (6th Cir. 2002) (noting that “the concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects the disability”) (quoting Bronk v Ineichen, 54 F 3d. 425, 429 (7th Cir.). Thus, the third above quoted element has been effectively modified by the Sixth Circuit to replace the “may be” with “is”

BRONK CASE The accommodation must facilitate the disabled persons ability to function vs The accommodation must survive a cost-benefit balancing that takes both parties needs into account

Bronk v Ineichen – 42 USC § 3604 (f)(2) Two adjectives, “reasonable”, “necessary” figure prominently in this definition, modifying both the term “accommodations” and [Landlords] obligations under the law. (Balancing-Test)

Forest City Residential Mgmt. , Inc. v. Beasley, 71 F. Supp Forest City Residential Mgmt., Inc. v. Beasley, 71 F. Supp. 3d 715, 727- 31 (E.D. Mich. 2014) (concluding that tenants of rental unit were not entitled to accommodation under the Fair Housing Act and the Rehabilitation Act to use medical marijuana in their rental units)

United States of America v Michigan Dept of Community Health, (W. D United States of America v Michigan Dept of Community Health, (W.D. Mich 2011) Petition to Enforce Drug Enforcement Administration Subpoena

EMPLOYMENT RAMIFICATIONS Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. Employers are not required to allow employees to be under the influence while at work. Employers are not prohibited from establishing and enforcing: Drug testing policy Drug-free workplace policy Zero-tolerance drug policy

EMPLOYMENT RAMIFICATIONS (CONT) Employers are not prohibited 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. Also, HB 523 does not permit a person to commence a cause of action against an employer for taking any of the above actions.

Impact on Workers’ Comp & Benefits An employee who tests positive or refuses to submit a drug test may be disqualified for compensation and benefits under the Ohio Workers’ Compensation Act. An employee who is discharged because of the use of medical marijuana is considered to have been discharged for just cause with regard to unemployment compensation and other related pay and benefits.

ADA/FMLA Marijuana is still a Schedule I drug (DEA declined to reclassify as of 8/11/2016) making it illegal under federal law for all purposes, including medicinal, for the foreseeable future. Use of medical marijuana is not covered or protected by the ADA or FMLA.

Impact on Employers: A Mixed Bag 1st Major Case: Casias v. Walmart Mandatory post workplace injury testing protocols Tested positive and admitted to MM use Presented MM registry card post-injury Employer drug policy had no exceptions Casias’ employment was terminated US Court of Appeals (6th Circuit) – 2-1 decision: MMMA does not regulate private employment either expressly or implicitly

Suggestions for Employers Employers should: Establish and consistently enforce a: Drug testing policy, Drug-free workplace policy, or Zero-tolerance drug policy Communicate to all employees that even those using marijuana with a valid prescription are still in violation of the drug policy.

Suggestions for Employers (CONT) Employers should also inform employees that: The employer doesn’t permit or accommodate an employee’s use, possession, or distribution of medical marijuana; The employer may refuse to hire or may discharge, discipline or take other action against an individual because of the person’s use, possession, or distribution of medical marijuana; An employee who tests positive or refuses to submit a drug test may be disqualified for compensation and benefits under the Ohio Workers’ Compensation Act; and An employee discharged under the Drug-Free Policy will be considered to have been discharged for cause with regard to unemployment compensation or other related pay and benefits.