The legalization of recreational marijuana in Ohio marks a significant shift in the state’s legal landscape, presenting new challenges and considerations for employers. With the passage of this legislation, businesses must reevaluate their workplace policies to ensure they remain compliant while balancing the rights of their employees. The transition from medical-only to an expansion of legalization that includes recreational use requires a strategic rethinking of workplace drug policies. This article outlines considerations Ohio business owners must address in light of the new marijuana law taking effect.
Understanding Ohio’s Recreational Marijuana Law
The scope of Ohio marijuana laws has evolved significantly. Initially, House Bill 523, effective from September 8, 2016, permitted medical marijuana for registered patients. The new law, passed on November 7th 2023, allows adults over 21 to purchase and possess up to 2.5oz (70g) of cannabis and to home-grow up to six marijuana plants per person, with a maximum of 12 plants per household. A 10% sales-tax will be imposed, to be allocated among addiction services, communities with cannabis facilities and social equity and jobs programs. Recreational marijuana use is still prohibited at the federal level, despite a number of U.S. states, including Ohio, the 24th state to do so, having passed laws legalizing its medical and/or recreational use. In summary, Section 3780.35 of the new law, which is titled “Rights of Employer,” clearly defines that recreational users are not explicitly protected regarding their recreational use when it comes to the workplace:
- Employers are not legally obligated to allow or accommodate an employee’s use, possession or distribution of adult-use cannabis.
- Employers maintain the prerogative to decline employment, terminate, discipline or take adverse employment actions against individuals who engage in the use, possession or distribution of cannabis.
- Employers can continue to establish and enforce their drug testing policies, drug-free workplace guidelines or zero-tolerance drug policies.
- The law does not impede any federal employment restrictions, including those set by the United States Department of Transportation.
- Individuals are not entitled to pursue legal action against employers for adverse employment actions related to their cannabis use, providing the employer has a clearly written policy in place.
- The law does not impact the authority of the workers’ compensation administrator to provide rebates or discounts to employers participating in a drug-free workplace program.11
Guidance for Ohio Employers on Marijuana Policy
Revise Drug-Free Workplace Policies:
Ohio business owners should prioritize updating their drug-free workplace policies. While recreational marijuana is now legal, companies still hold the authority to enforce drug-free standards. As reported in the Ohio Capital Journal, the ballot language of the new law clearly states that an employer does not need to “accommodate an employee’s use, possession, or distribution of adult use cannabis” and supports employers “refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual … because of that individual’s use, possession, or distribution of cannabis.”22 Clarity in company policy language regarding marijuana consumption, possession and impairment at work is essential.
Focus on Safety-Sensitive Roles:
Businesses with safety-sensitive positions must maintain stringent drug policies. OSHA’s regulations necessitate a drug-free environment for roles involving machinery or transportation to ensure workplace safety. But to safeguard any business, the Ohio Bureau of Workers’ Compensation states that employers must consider implementing a drug-free workplace policy or reviewing and updating an existing one. This is crucial due to specific provisions within the new law that pertain to the use of medical marijuana in contravention of an employer’s drug-free workplace guidelines, zero-tolerance policy, or any formal program regulating medical marijuana use.33
Tackle Off-Duty Marijuana Use:
Ohio employers should clearly define their stance on employees’ recreational marijuana use outside of work hours. The new law does not prohibit employers from enforcing a drug testing policy or requiring employees to be drug-free in the workplace. Employers still have the right to discipline policy violations as outlined. Policies should reflect the company’s position on off-duty consumption and its potential impact on job performance.
Educate Management on New Marijuana Policies:
It’s critical that all supervisory and HR teams are well-versed in the updated policies. Training should cover recognizing impairment, drug testing procedures and accommodating medical marijuana use under ADA guidelines.
Navigate Medical Marijuana Accommodations:
While Ohio law does not obligate employers to accommodate medical marijuana on company property, discrimination against medical users can be a legal pitfall. Policies should be carefully crafted to avoid such issues.
Develop an Impairment Detection Strategy:
With recreational marijuana’s legalization, Ohio businesses should implement strategies to detect and manage workplace impairment, ensuring a safe and productive work environment. When determining impairment detection policies, employers should consider how they will screen for pre-employment matters, post-accident matters and impairment while at work. These screenings can pose additional challenges given that marijuana can stay in one’s system for up to 30-days after use.
Communicate Policy Changes to Employees:
Effective communication is key when introducing new workplace policies. Ohio employers should provide clear written notices and Q&A sessions to address employee queries, ensuring everyone understands the new rules.
Reevaluate Hiring Procedures:
The legalization of recreational marijuana may necessitate changes to pre-employment drug screening practices. There exists a concern that enforcement of stringent drug-free workplace policies will result in a smaller candidate pool.44 Ohio business owners should balance the need for such testing against the potential narrowing of the candidate pool.
Keep Abreast of Legal Changes:
The legal status of marijuana is continually evolving. Ohio employers must stay informed on state and federal law changes to keep their policies compliant and up to date. Though the new law passed on November 7 and is set to take effect 30 days after passage, Ohio recreational marijuana usage is still not guaranteed. Many Ohio legislators have expressed their opposition to the law and will attempt to overcome its passage in the statehouse.55 The next step for Ohio legislators is to battle out possible proposed amendments in efforts to delay or overcome the legalization efforts, possibly delaying the enforcement of this law for many months.66 Just because it is set to take effect by the end of 2023 does not mean it will. Employers should keep an eye on this while updating its policies and procedures.
Seek Legal Advice:
Ohio business owners should seek advice from labor and employment attorneys to tailor workplace policies to their specific business needs and ensure legal compliance.
Ohio’s legalization of recreational marijuana calls for a proactive approach from business owners to their workplace policies. By staying informed and consulting with legal experts, Ohio businesses can maintain a safe, productive, and legally compliant work environment. As the legal landscape continues to evolve, Ohio employers must remain adaptable, ensuring their policies reflect the latest legal requirements and best practices. If you have any questions regarding this new law and how it can impact your business, reach out to the Labor & Employment team at Gertsburg Licata. We are here to give you peace of mind.
Jonathan Stender, Esq., is a partner in the Labor & Employment practice group, brings over 20 years of experience representing management and employers in workplace law. Formerly a partner at Dworken & Bernstein, Jon specialized in heavy litigation, administrative practice, and counseling clients through employment law matters and Class Actions. Beyond his legal practice, Jon is an avid Cleveland sports enthusiast and holds a soft spot for his alma mater, the Washington Huskies. For consultations or inquiries, Jon can be reached at [email protected] or (216) 573-6000 x7013.
Zena Elliott is a Senior Attorney at Gertsburg Licata, brings a wealth of legal expertise to her role, having served as a Senior Assistant Attorney General for the State of Ohio and amassed over 25 years of private practice experience. Specializing in litigation, employment and worker’s compensation, as well as estate planning and probate, Zena has represented a diverse clientele, including individuals, entities, and public employers. Her extensive background includes jury trials involving workers’ compensation appeals. Beyond her legal career, Zena served a 4-year term on the Board of Education for the Aurora City School District and holds a minor and long-term sub-teaching license in Spanish. She enjoys tennis, skiing, and kayaking outside of the office. For legal matters, Zena can be contacted at [email protected] or 216-573-6000 x7010.
Disclaimer: The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. It does not establish an attorney-client relationship, and any reliance on the information contained herein is done at your own risk. For specific legal guidance tailored to your business and jurisdiction, it is recommended to consult with a qualified attorney who can provide professional advice based on your unique circumstances.
1 https://www.ohiosos.gov/globalassets/elections/2023/gen/issuesreport.pdf
2 https://ohiocapitaljournal.com/2023/10/26/passing-issue-2-doesnt-come-with-protections-for-employees-who-use-recreational-marijuana/#:~:text=Ballot%20Langauge-,The%20ballot’s%20language%20makes%20it%20clear%20it%20does%20not%20require,employment%20action%20against%20an%20individual%20%E2%80%A6
3 https://www.bwc.ohio.gov/downloads/blankpdf/medmarijuanaimpact.pdf
4 https://www.vindy.com/news/local-news/2023/10/ohio-workplaces-prep-for-new-marijuana-policies/
5 https://thehill.com/homenews/campaign/4298355-ohios-issue-2-passes-to-legalize-recreational-marijuana/
6 https://www.politico.com/news/2023/11/07/ohio-marijuana-legalization-vote-results-00125991
