Early poll results from Ohio indicate that Issue 2, legalizing and regulating recreational marijuana for Ohio residents over age 21, has passed. Issue 2 allows the cultivation, sale, purchase, possession, use, and home growth of cannabis. Legalized forms of cannabis include plant materials and seeds, live plants, clones, extracts, drops, lozenges, oils, tinctures, edibles, patches, smoking or combustible products, vaporization of products, beverages, pills, capsules, and other products.
What does this mean for Ohio employers?
For now, on its December 7, 2023, effective date, nothing will change. A verbatim excerpt from Issue 2 states the following related to employers:
Section 3780.35. Rights of employer.
(A) Nothing in this chapter does any of the following:
- Requires an employer to permit or accommodate an employee’s use, possession, or distribution of adult-use cannabis otherwise in compliance with this chapter;
- Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s use, possession, or distribution of cannabis otherwise in compliance with this chapter;
- Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
- 4. Interferes with any federal restrictions on employment, including the regulations adopted by the United States Department of Transportation in Title 49 of the Code of Federal Regulations, as amended;
- 5. Permits an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment related to the individual’s use of cannabis; or
- Affects 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 by rules adopted by the administrator under Chapter 4123 of the Revised Code.
(B) An individual who is discharged from employment because of that individual’s use of cannabis shall be considered to have been discharged for just cause for purposes of division (D) of section 4141.29 of the Revised Code if the individual’s use of cannabis was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of cannabis.
As a result, employers may continue to enforce their drug and alcohol policies prohibiting the use of cannabis products on company property and during working hours or the sale or distribution on company property. Additionally, and unlike many other states, Issue 2 allows employers to take adverse action against an employee or refuse to hire a candidate based on their use of cannabis.
Ohio employers subject to federal Department of Transportation requirements and/or those under federal government contracts may also continue drug testing based on those federal requirements. Additionally, Ohio employers may maintain their voluntary Drug-Free Safety Programs through the Ohio Bureau of Workers’ Compensation.
Next Steps for Employers:
Although nothing in the new law requires employers to modify current policies, MRA recommends that current policies and practices be reviewed to ensure they remain in line with company philosophy and that these policies are clearly communicated to employees.