Ohio legalizes recreational use of marijuana

On November 7, 2023, Ohio voters passed Issue 2 to legalize recreational use of marijuana.  The new law, An Act to Control and Regulate Adult Use Cannabis, goes into effect on December 7, 2023.  The law permits adults 21 and older the use of and purchase recreational marijuana.

What rights will employers have?

• Like the Ohio’s medical marijuana program, the new law does not require employers to permit or accommodate an employee’s use, possession, or distribution of marijuana.
• Employers are permitted to refuse to hire, discharge, discipline, or otherwise take an adverse action against an employee because of the individual’s use, possession, or distribution of marijuana.
• Employers are permitted to continue enforcing drug testing and drug-free workplace policies.
• As it relates to unemployment benefits, an employer has “just cause” to terminate an employee for use of marijuana in violation of the employer’s drug-free policy.
• The new Act doesn’t impact any federal restrictions. This means employers who have drug testing obligations under the U.S. Department of Transportation or Federal Aviation Administration still need to follow those federal rules.

How will employers be impacted?

• Employers may see an increase in positive drug tests for marijuana. Make sure company policy is clearly outlined in the employee handbook.
• Marijuana impairment affects depth perception, reaction time, coordination, and other motor skills. Employers could experience an increase in workplace accidents and performance issues if employees operate a vehicle under the use of marijuana.

What steps should employers take?

• Employers should review and update their current substance abuse policies to reflect the new law.
  • Specific language stating the employer’s position on recreational marijuana should be included in the policy update.
  • Employers prohibiting impairment at work should develop clear policies advising the use of cannabis during work hours—including meal breaks and rest breaks—is not permitted, and that cannabis use is not permitted on company premises, including in an employee’s car in the company parking lot.
• Employers should review and update their drug testing protocols for pre-employment, post-accident, and reasonable suspicion testing.
  • When to test?
    • Currently, there is not a test that can accurately indicate the timeframe that marijuana was ingested (whether it was hours, days or weeks depending on the type of testing). Meaning that testing alone is not an accurate way to determine marijuana impairment.
    • It is often difficult to determine when/if the marijuana was ingested due to the length of time it can remain in one’s system, in the event of a workplace incident where there is a concern of impairment, we suggest relying on observed impaired behaviors when considering corrective action– observing and documenting the unsafe behavior and the potential impact that the continued behavior could have on the employee and the Company.
  • Do all testing protocols include marijuana?
    • In other states that have legalized recreational marijuana, it has been common for marijuana to be removed from testing protocols while keeping the rest of the panel in place.
  • Employers should ensure they are complying with mandatory testing requirements under state and/or federal regulations, such as the Department of Transportation (DOT).
  • Employers should train their managers and supervisors on both medical and personal use of marijuana.
    • Company polices relating to marijuana use in the workplace.
    • Signs of impairment.
    • Testing protocols.
    • Disciplinary policies.
  • Employers should communicate any changes made to employees, so they understand the implications and sign acknowledgment forms documenting their understanding of any changes to existing company policies.

For more information on the new law as it relates to policies and best practices, contact a member of our HR consulting team.  For implications relative to implementing policies or safety matters, contact a member of our safety team.

Source: Ohio Revised Code 3780.35

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