United States: Ohio Legalizes Adult Use Of Recreational Marijuana: What Does This Mean For Employers?

On Nov. 7, 2023, Ohio voters passed a statutory initiative that will legalize the purchase and use of recreational marijuana for adults 21 and older, becoming the 24th state to do so. The new law, An Act to Control and Regulate Adult Use Cannabis (the "Act"), goes into effect on Dec. 7, 2023.

What does this mean for the workplace? Fortunately for employers, the Act allows employers to retain the following rights:

• Employers are not required to permit or accommodate an employee's use, possession, or distribution of marijuana.
• Employers are still permitted to refuse to hire, discharge, discipline, or take other adverse employment action against an individual because of that individual's use, possession, or distribution of marijuana in the workplace.
• Employers are still permitted to establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance drug policies.
• If an employer terminates an employee because of the employee's marijuana use in violation of the employer's drug policies, the employee will be considered to have been discharged for just cause for purposes of unemployment compensation.
• Nothing in the Act interferes with any federal restrictions on employment.

Further, nothing in the Act gives applicants or employees the right to file suit against an employer for taking any adverse action against them related to their use of marijuana.¹

How Will Legalized Marijuana Impact Ohio Employers?

While the Act does not require employers to accommodate employees' use of recreational marijuana, the legalization of recreational marijuana will impact Ohio employers in several ways:

• Employers who regularly test for marijuana are likely to see an uptick in positive drug test results. This could lead to challenges in recruiting and retaining employees.
• Employers may see an increase in workplace accidents, performance issues, and workplace conduct violations, as more employees may report to work under the influence of recreational marijuana.
• As marijuana becomes less controversial, employers who maintain zero-tolerance policies may have a harder time recruiting and retaining employees.

Next Steps for Employers

Below are some steps that employers should consider taking in light of this new law:

• Update Drug Policies. Employers should update their policies to provide clear notice to employees that even though marijuana is now legal under state law, its possession and use in the workplace is prohibited under company policy.
• Re-Evaluate Drug Testing Procedures. Employers should consider updating their drug testing procedures, especially if they find that an increase in positive marijuana test results is making it difficult to recruit or retain employees. In determining when to test for marijuana, employers should keep in mind that drug tests for marijuana do not detect current marijuana intoxication. A urine drug screening for marijuana may be positive for several weeks after a person last used marijuana.

• Offer Training. Supervisors and human resources employees are likely to be called upon to answer employee questions about the Act and how it impacts the workplace. Employers should train their human resources employees and supervisors on the new law and the employer's policies regarding drug use, drug testing, and disciplinary action.

Lastly, employers should keep in mind that because the Act added a chapter to the Ohio Revised Code rather than amending the Ohio Constitution, it may be amended by the Ohio General Assembly. Some members of the General Assembly have expressed an interest in amending or repealing certain aspects of the law.

Footnote

1. R.C. 3780.35 sets forth a complete list of employer rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.