On November 7, 2023, Ohio voters passed An Act to Control and Regulate Adult Use of Cannabis (the Act), making Ohio the 24th state to legalize recreational adult use of marijuana. While Ohio and its Department of Commerce is far from retail sale or distribution of marijuana, the Act makes it legal for individuals over the age of 21 in the state to possess, use, and grow their own marijuana starting December 7, 2023.

Employer Rights Under the Act

The Act aligns with Ohio’s existing medical marijuana policies, highlighting employers’ ability to maintain drug-free workplaces. Ohio employers retain the authority to establish and enforce comprehensive measures such as drug testing, drug-free workplace policies, and zero-tolerance drug policies. The law explicitly states that employers are not obliged to accommodate or permit employees’ marijuana use, possession, or distribution if it contradicts workplace policies. Employers can take disciplinary actions, including termination, based on an individual’s violation of these policies.

Termination and Legal Implications

If an employer terminates an employee due to marijuana use contrary to company policies, Ohio law deems the termination lawful. According to unemployment compensation laws, the discharge is considered “just cause.” Importantly, the Act does not provide employees or applicants with grounds for legal action against such employer decisions, even if the marijuana use is legal and off-duty.

What Should Employers Consider Next?

While the Act does not alter legal requirements for employers, it necessitates careful consideration. Employers are advised to:

Review Current Policies:

Employers should review their current policies to ensure they reflect the expectations of the business, and still serves the business needs of the employer.

Clearly Communicate Policies:

Clearly communicate any policy to employees, particularly highlighting any changes, and ensure employees understand the implications and expectations.

On the Clock vs. Off the Clock:

For businesses who allow personal use of marijuana, employers should still consider possible implications and create policies accordingly. This may include concerns of workplace use or impairment, possession of marijuana at work, and more.

Uniform Enforcement:

Employers should ensure uniform enforcement, including not differentiating between personal and medical use by employees, particularly for zero-tolerance policies.

Issues to Consider

Testing

When deciding on the appropriate policy for your business, it’s crucial to consider potential consequences. For instance, a significant concern is employee impairment during work hours. While employers can and should train managers to identify signs of marijuana impairment, that may not be sufficient to confirm impairment.

The challenge of testing for “current impairment” predates the legalization of marijuana. Due to marijuana’s fat-solubility, traces of the drug can be stored in fatty cells, making it detectable long after initial impairment. Additionally, while tests exist to measure marijuana concentration levels in the system, recreational users will consistently show higher levels as the concentration builds up.

Given the lack of definitive testing methods, employers may only reliably test and confirm whether marijuana has been consumed. This limitation makes testing practical in environments with a zero-tolerance policies.

Legal Claims

While employers do not have to worry about firing an employee for violating workplace policies, it is not a ban on other legal claims. This includes discriminatory claims, such as disparate treatment.

Disparate treatment occurs when employees are treated differently based on protected characteristics, such as race, ethnicity, or disability. If enforcement is not uniformly applied or if certain groups of employees are disproportionately affected, it may result in allegations of discrimination. For example, if any marijuana policy, regardless of its content, is enforced more rigorously against a specific demographic, such as individuals from certain racial or socioeconomic backgrounds, without a valid and justifiable reason, it could be construed as discriminatory. This is why it is imperative to also assess the business needs before creating a policy.

What to Include in your Policy

An employer’s marijuana use policy should be comprehensive and clear, providing guidance to employees regarding the company’s stance on marijuana use while promoting a safe and productive work environment. Here are a few elements to consider in your policy:

• Statement of Intent: clearly articulate the company’s position on marijuana use in the workplace.
• Scope of Applicability: when and where the policy applies, as well as whether the policy applies to all employees, including remote workers and contractors.
• Impairment – clearly outline the way testing will be conducted, and signs of impairment that may be observable signs of impairment.
• Consequences for Violations: Clearly state the consequences for violating the marijuana use policy.

In light of Ohio’s legalization of recreational marijuana, employers must proactively assess and adapt their policies to maintain compliance with the evolving legal landscape.