Complete Story
11/09/2023
6-Step Plan for Ohio Employers as Recreational Marijuana Legalized
Source: Fisher Phillips, November 8, 2023
We will be hosting Jeff Smith of Fisher Phillips at our Annual Council Meeting next week, November 16, to give a brief update on this topic.
Ohio Has Some Cannabis History
Many employers are already familiar with some of the issues created by this new law as Ohio authorized the use of medical marijuana in 2016. That law permitted the purchase and use of marijuana by using a medical “marijuana card” certified or prescribed by a licensed physician.
The medical marijuana card is limited to individuals suffering from specified medical conditions.
Importantly for employers, the medical marijuana provisions set forth protections for employers, and provided that an employer would have the right to take employment actions to the extent the marijuana or cannabis use impacted the workplace. In response to the 2016 law, many employers have already developed policies to deal with the use of medical marijuana by their employees.
Changed Landscape
However, Issue 2 changes the landscape for Ohio. It will open up the box to and expand the numbers of employees (adults 21 and over) who may legally use marijuana. The impact on employee safety has in fact been a subject of significant studies in other states that have legalized recreational marijuana.
With the new law, Ohio employers should prepare for an influx of workplace accidents and injuries that will come with more employees using cannabis. Quest Diagnostics found the number of marijuana-positive drug tests performed after workplace accidents soared 204% from 2012 to 2022 – coinciding with the trend of more states legalizing recreational use of marijuana. Studies further show a 55% increase in workplace accidents in states that have legalized recreational marijuana, and an 85% higher injury rate for workers who tested positive for marijuana.
Protections for Employers
As with the medical marijuana bill, Issue 2 provided specific language to protect an employer’s right to discipline and discharge employees for cannabis use that impacts the workplace. Much like with medical marijuana, employers with employees in Ohio retain all of the following rights:
- An employer does not have to permit or accommodate an employee’s use, possession, or distribution of adult use cannabis at the workplace, or tolerate an employee’s impairment from the drug, even if caused by lawful off-duty use of cannabis;
- An employer is permitted to refuse to hire, discharge, discipline, or otherwise take an adverse employment action against an individual because of that individual’s use, possession, or distribution of cannabis in the workplace;
- An employer is permitted to establish and enforce a drug testing policy, drug-free workplace policy, and/or zero-tolerance drug policy; and
- If an employer discharges an employee from employment due to cannabis use in violation of company policy, the employee will be considered to have been discharged for just cause.
