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.

  1.  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.

 

  1.  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.

 

  1.  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.

 

  1.  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.

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