Open and honest discussions from our team.
At Harpst Becker, we value honesty and transparency when it comes to our client relationships. With this in mind, our goal is to periodically share our thoughts on the latest legal issues and trends in the industries we serve. Check out these insights from our team of professionals.
On November 7, 2023, Ohio citizens voted in favor of Issue 2 to legalize adult use of recreational marijuana. The new “adult use” marijuana law (now Ch. 3780 of the Ohio Revised Code) takes effect on December 7, 2023, and the question on every Employer’s mind is, “what does this law mean for my business?” The good news is that Employers are already equipped to handle this change because the new law includes Employer protections similar to the medical marijuana law that passed in 2016.
The information below discusses what employers should know about the passage of Issue 2 and things employers should consider as this new law takes effect next month.
Issue 2 protects an Employer’s broad authority to establish employment policies related to marijuana use.
- Employers are not required to permit or accommodate an employee’s use, possession, or distribution of marijuana in the workplace.
- Employers may refuse to hire, discharge, discipline, or otherwise take an adverse employment action against an employee because of the employee’s use, possession, or distribution of marijuana.
- Employers may establish and enforce a drug testing policy, drug-free workplace policy, or a zero-tolerance drug policy.
- Employers participating in the BWC drug-free workplace policy program may still receive rebates or discounts on premium rates from Ohio Workers’ Compensation.
- Employers cannot be sued by any individual for refusing to hire, discharging, discriminating, retaliating, or otherwise taking an adverse action against an individual related to the individual’s use of marijuana.
Termination of an employee for marijuana use is considered “just cause” for unemployment purposes.
- The new adult use marijuana law says that an employee discharged from employment for violating a written drug-free workplace policy or other formal policy due to their use of marijuana is deemed to be discharged for “just cause” which makes them ineligible for unemployment benefits.
Ohio’s marijuana law and Federal law.
- Issue 2 does not and cannot override Federal law.
- Marijuana is still considered a Schedule I drug under Federal law.
- Possession and distribution of marijuana is still prohibited under Federal law.
- This also means that transporting marijuana across state lines is a Federal offense.
- Employers may have mandatory testing requirements under certain state and/or federal regulations, such as those set by the Department of Transportation. Employers should review those testing requirements to confirm they comply with federal law. Employers should contact an attorney if they are unsure.
Action items for employers.
- Employers should, as soon as possible, communicate to their employees the company’s position on marijuana use and remind employees the drug-free workplace policies still apply to marijuana.
- Review current drug policies to ensure they are clear about any marijuana restrictions, including drug testing protocols for pre-employment testing, random testing, post-accident testing, and reasonable suspicion testing.
- Employers should maintain their focus on workplace safety.
- Marijuana affects an individual’s depth perception, reaction time, coordination, motor skills, and creates sensory distortion. For employees who work with dangerous equipment these side effects can be deadly and threaten the safety of others.
- Employers should remain vigilant and watch for signs of intoxication and make sure managers and supervisors are trained to spot the signs of marijuana use.
- Decide whether to exclude marijuana from drug-testing protocols. The prevalence of marijuana use and availability may prompt some employers to exclude marijuana from drug testing for non-safety sensitive positions. Note that such a change may affect the eligibility for the BWC drug-free workplace program.
Common Employer Questions.
- Can I still drug test job applicants and reject them if they test positive for THC/marijuana? Under the new law, Employers may establish and enforce a drug testing policy, drug-free workplace policy, or a zero-tolerance drug policy. If an applicant tests positive for marijuana in violation of the company’s drug-free workplace policy, the new law permits the Employer to refuse to hire the individual because of their marijuana use.
- Can I fire an employee if they test positive for marijuana in a post-accident or random test? If I suspect an employee is high at work, can I send them home? Can I fire them if they tell me they have smoked on a break or come to work after smoking at home? Same as the question above, Employers may establish and enforce a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy. The new law permits employers to discharge, discipline, or otherwise take an adverse employment action against an employee for their use, possession, or distribution of marijuana. If your company does not have policies on marijuana use and possession, you should consider adopting a policy that is clear about any marijuana restrictions and actions that may be taken if an employee violates the policy.
- Are employees allowed to possess marijuana at work even if they don’t use it? It depends on company policy. As discussed above, Employers can create workplace policies that restrict employees from possessing marijuana while at work. If an employee violates the workplace policy, the new law permits the employer to discharge, discipline, or otherwise take an adverse employment action against the employee. If your company does not have policies on marijuana use and possession, you should consider adopting a policy that is clear about any marijuana restrictions and actions that may be taken if an employee violates the policy.
- What do I do if I am working on a job and another contractor’s employees are high and putting us at a safety risk? Just as you would report another contractor’s employee for committing other health and safety violations, you should report the employees’ marijuana use to the site supervisor and/or GC. You can file a complaint with OSHA if proper action is not taken by the site supervisor/GC.
The employment practices team at Harpst Becker is here for your questions about Ohio drug-free workplace programs and other employment concerns.
Monica Wallace: 330.983.9974 ● Todd Harpst: 330.227.6313
This document is provided for informational purposes only and should not be relied upon as legal or tax advice.
COVID-19 Legal Update – FFCRA Paid Leave Fact Sheet
Updated March 31, 2020
Effective April 1, 2020 through December 31, 2020, Employers with under 500 Employees must provide Paid Sick Leave and Paid Childcare Leave under FFCRA. Employers must post or distribute (by mail or email) the Employee Notice: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
Mandatory Paid Sick Leave
- Eligibility –employee is unable to work (or telework) because:
- Employee is subject to a government-mandated quarantine or isolation order related to COVID-19;
- Employee is advised by a health care provider to self-quarantine due to COVID-19;
- Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Employee is caring for an individual subject to a government isolation or quarantine order or who has been advised by a health care provider to self-quarantine due to COVID-19;
- Employee is caring for his/her child because school or place of care of the child has closed, or the childcare provider is unavailable due to COVID-19; or
- Employee experiences a substantially similar condition specified by U.S. Secretary of HHS.
- Amount of Paid Sick Leave:
- Full-time employees – 80 hours per year; and
- Part-time employees – the average number of hours employee works in a 2-week period.
- Paid Sick Leave based on regular rate of pay for the number of normally scheduled hours during the days missed, but shall not exceed:
- Full pay up to $511 per day if the absence is for reasons 1, 2 or 3 above, capped at $5,110; or
- 2/3 of regular pay up to $200 per day if the absence is for reasons 4, 5, or 6 above, capped at $2,000.
- Employees cannot be required to use other paid time off prior to using Mandatory Paid Sick Leave. After using Mandatory Paid Sick Leave, employees may use other available paid time off. Mandatory Paid Sick Leave is not paid out at separation from employment and expires at the end of the calendar year.
- If you have over 50 employees, remember to designate leave as FMLA, even during Paid Sick Leave, if the employee takes leave for their own medical condition or to care for a sick family member. Use the regular FMLA designation forms and internal procedures.
Mandatory Paid Childcare Leave
If an Employee is unable to work due to reason #5 above and has been employed at least 30 days, the Employee is entitled to an additional 10 weeks of Paid Childcare Leave after using the 80 hours of Paid Sick Leave.
- Paid Leave – paid at two-thirds (2/3) of employee’s regular rate of pay for the number of hours the employee would have normally worked on each day missed; not to exceed $200 per day or an aggregate of $10,000.
- Notice – Employees should provide notice of the leave as soon practicable. Once Childcare Leave begins, you may require regular updates on the employee’s status.
- Intermittent Leave – Employers may allow use of the Childcare Leave on an intermittent basis rather than a continuous period. The intermittent leave could be taken in hourly or full day increments.
- Job Reinstatement – At the expiration of the leave, you must reinstate employees to the same position they held at the time of the leave or to an equivalent position as if they had been continuously employed.
Updated Guidance from the Department of Labor
What is the small business exception to the Paid Childcare Leave requirement?
- Companies with fewer than 50 employees may be exempt from providing Paid Childcare Leave (and Paid Sick Leave for purposes of childcare loss) if providing the leave would jeopardize the viability of the business. A small business may claim this exemption if an “authorized officer” determines:
- The Paid Sick Leave would cause the employer’s expenses and financial obligations to exceed available business revenues and would cause the employer to cease operating at minimal capacity;
- Absence of the employee or employees requesting Paid Sick Leave or Paid Childcare Leave would create a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; OR
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting Paid Sick Leave or Paid Childcare Leave, and these labor or services are needed for the small business to operate at a minimal capacity.
- Must document in writing the reasons why any of the exemption criteria apply to your small business.
- You do not need to submit documentation to the Department of Labor at this time.
What is the “regular rate of pay” for Paid Leave?
- Regular rate of pay includes wages, salaries, commissions, tips, piece rates, non-discretionary bonuses, but NOT overtime pay.
- Use the average weekly amount for the 6 months prior to the date an employee takes leave.
- If employed for less than 6 months, use the average for the entire time the employee has worked for you.
- Alternative method is to take the total pay for the last 6 months and divide by the total hours worked in the last 6 months. This will give you the regular rate of pay per hour.
What Records or Documentation is Required?
- If take payroll tax credits for Paid Sick Leave or Paid Childcare Leave, you must have documentation to track the amount paid to each employee during each quarter.
- Follow regular FMLA certification procedures if taking leave for a qualifying reason under the FMLA.
- You may need to request additional information from employees to meet future IRS requirements.
Can Employees take Intermittent Leave while Working at Usual Worksite?
- Paid sick leave for reasons other than child care must be taken in full-day increments and cannot be taken intermittently.
- Once an employee begins a leave for any reason other than child care, the employee must take paid sick leave continuously until the available leave is exhausted or the employee no longer has a qualifying reason for leave.
- An employee may take any unused leave for a different qualifying reason at a later date up until it expires on December 31, 2020.
- If the paid leave is for child care reasons, you may voluntarily agree to any intermittent leave schedule.
Can Employees take Intermittent Leave while Teleworking?
- You may allow employees to take Paid Sick Leave or Paid Childcare Leave intermittently.
- Employees may take intermittent leave in any increment so long as you and the employee agree on the schedule.
How do I Apply Existing PTO Policies?
- Employees cannot take leave under your PTO policies at the same time as Paid Sick Leave or Paid Childcare Leave unless you agree to allow the employee to do so. (For example, you may agree to allow 2/3 of pay to be covered by Paid Sick Leave or Paid Childcare Leave with 1/3 of pay covered by PTO.)
- You may not require employees take PTO before taking Paid Sick Leave or Paid Childcare Leave. However, employees may choose to use available PTO first to receive full pay rather than the 2/3 available under FFCRA.
After a Layoff or a Business Closure, do I have to continue to pay Paid Sick Leave or Paid Childcare Leave?
- If the closure or layoff was effective prior to April 1, 2020, employees are not entitled to Paid Sick Leave or Paid Childcare Leave.
- If the closure or layoff takes place on or after April 1, 2020, employees will not get Paid Sick Leave or Paid Childcare Leave for any period after the date of the closure or layoff.
- If there is a closure or layoff while an employee is on leave under the FFCRA, your employee is only entitled to paid leave for the period prior to the layoff or closure date.
- If there is a reduction in hours, employees are not entitled to collect paid leave to make up for the reduction.
- After a business closure, reduction in hours or layoff, most employees will be eligible for unemployment compensation.
For Employers Subject to Multiemployer Collective Bargaining Agreements
- You may satisfy Paid Sick Leave or Paid Childcare Leave obligations by making contributions to a multiemployer fund, plan, or other program in under an existing collective bargaining agreement if the plan provides paid leave that would be available for the same reasons for Paid Sick Leave under the FFCRA; however, you still need to provide at least 80 hours of paid leave.
- Alternatively, you may also choose to satisfy your obligations under the FFCRA by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
The employment practices team at Harpst Becker is available for your questions about COVID-19 and other employment concerns.
This is provided for informational purposes only and should not be relied upon as legal or tax advice.
Families First Coronavirus Response Act (“FFCRA”) Summary
President Trump signed the Families First Coronavirus Response Act into law March 18, 2020. The Act generally applies to employers with fewer than 500 employees and will be effective April 2, 2020. Employers need to take note of two main aspects of the Act: (1) new paid sick leave requirements, and (2) emergency expansion of the Family Medical Leave Act (FMLA).
Employers will pay the employee benefits under this law directly, but the Act provides some relief as refundable payroll tax credits. The payroll tax credits are available through 2020 and charged against your 6.2% Social Security payroll tax for wages paid to employees while they take time off under the Act’s sick leave and family leave programs. The payroll tax credit can be claimed on a quarterly basis, equal to 100% of the wages paid. The credits are refundable if they exceed the amount you owe in payroll tax.
- Mandatory Paid Sick Leave
Pursuant to the FFCRA, you must provide eligible employees with mandatory paid sick leave (“Mandatory Paid Sick Leave”). There is no waiting period for this benefit; it applies immediately upon hire.
- Eligibility for Time Off – Mandatory Paid Sick Leave may be used when the employee is unable to work (or telework) for any of the following reasons:
- Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- Employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Employee is caring for an individual who is subject to a government isolation or quarantine order or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Employee is caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable due to COVID-19 precautions; or
- Employee experiences a substantially similar condition specified by the U.S. Secretary of HHS.
- Mandatory Paid Sick Leave Pay Period and Benefit
- Mandatory Paid Sick Leave is calculated as follows:
- Full-time employees – 80 hours per year; and
- Part-time employees – the number of hours you work, on average, in a 2-week period.
- Under Mandatory Paid Sick Leave, you must pay the employee’s regular rate of pay for the number of regularly scheduled hours during the days missed, but shall not exceed:
- $511 per day if the absence is for reasons 1, 2 or 3 above, capped at $5,110; or
- $200 per day if the absence is for reasons 4, 5, or 6 above, capped at $2,000.
- Employees cannot be required to exhaust other available paid time off, such as sick or vacation pay, prior to using Mandatory Paid Sick Leave. After exhausting available Mandatory Paid Sick Leave, employees may use any other available, accrued paid time off for absences thereafter. Employees are not entitled to payment for any unused Mandatory Paid Sick Leave upon separation from employment and Mandatory Paid Sick Leave does not carryover at the end of the calendar year.
- Mandatory Paid Sick Leave is calculated as follows:
Mandatory Paid Childcare Leave
- Starting April 2, 2020, and continuing through December 31, 2020, an employer with fewer than 500 employees must provide up to 12 weeks of paid, job-protected Mandatory Paid Childcare Leave (“Childcare Leave”) to eligible employees to care for the employee’s child when the child’s school is closed, or a childcare provider is unavailable as a result of COVID-19. There may be an exception for businesses with fewer than 50 employees in the future, but that is not in effect as of now.
- Eligibility – Employees must work for you for at least 30 days to qualify.
- Reason For Leave – Childcare Leave may be used if the government declares a public health emergency (like Ohio has), and the employee is unable to work (or telework) in order to care for the employee’s child when the child’s elementary or secondary school is closed, or a childcare provider is unavailable as a result of COVID-19.
- Length of Leave – The maximum amount is 12 workweeks in any 12-month period. However, if both parents work for you and are eligible for leave, the parents will be limited to a total of 12 workweeks off between the two of them. Also, there is no intermittent leave; whatever number of weeks are utilized by an employee must be continuous, up to the 12-week maximum.
- Unpaid Leave – The first 10 workdays of Childcare Leave are not paid; however, the employee can use any available accrued paid time off, vacation pay or sick pay during that time.
- Paid Leave – Starting day 11 and through the remainder of the leave, you must pay the employee at a rate equal to two-thirds (2/3) of the employee’s regular rate of pay for the number of hours the employee would have regularly worked on each day missed; not to exceed $200 per day or an aggregate of $10,000.
- Notice – All employees requesting Childcare Leave must provide you with notice of leave as soon as practicable. Once Childcare Leave has begun, you may require the employee to follow reasonable notice procedures to provide updates on the employee’s status.
- Employer Notice – You must post a notice of Childcare Leave as soon as the appropriate form is published by the Secretary of Labor.
- Job Reinstatement – At the expiration of the leave, you must reinstate employees to the same position they held at the time of the leave or to an equivalent position as if they had been continuously employed. However, if you have fewer than 25 employees, you do not have to reinstate the employee if COVID-19 eliminates the employee’s position (but you still must make reasonable attempts to rehire the employee for one year following the employee’s leave) or if you go out of business.
- Multi-Employer Bargaining Agreements – Paid leave provided under a multi-employer collective bargaining plan will count toward the requirements of Paid Childcare Leave.
Nondiscrimination – You cannot discriminate against employees for using Childcare Leave or Mandatory Paid Sick Leave.
- We will keep you informed as more information becomes available due to the Act’s rapidly moving law-making process. Employers with fewer than 500 employees must prepare to implement these policies because they are to begin on April 2, 2020. Please call us if you have questions.