Earlier this week, Ohio voters decided Issue 2, voting to enact Ohio Revised Code Chapter 3780, effective December 7, 2023. Chapter 3780 authorizes and regulates the recreational use of cannabis by adults over twenty-one years of age.

Of particular importance to Ohio employers, Chapter 3780 DOES NOT:  

• Require an employer to permit or accommodate employee use, possession, or distribution of adult-use cannabis;
• Prohibit an employer from refusing to hire, discharging, disciplining, or taking other adverse employment action against an individual or employee because of that employee’s use, possession, or distribution of adult-use cannabis;
• Prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero tolerance drug policy;
• Interfere with any federal restrictions on employment, including the regulations adopted by the United States Department of Transportation;
• Permit an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, retaliating, or otherwise taking an adverse employment action against an individual related to the individual’s adult-use of cannabis; or
• Affect the authority of the administrator of Ohio’s worker’s compensation insurance program to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program.

Also notably, under Chapter 3780, an individual who has been discharged from employment because of the individual’s use of cannabis shall be considered to have been discharged for cause, for purposes of unemployment benefits eligibility, if the individual’s use of cannabis was in violation of an employer’s drug policy.

Ohio joins 23 other states and Washington D.C., which permit recreational adult use of marijuana in some capacity. At the federal level, marijuana is still a Schedule I drug under the Controlled Substances Act, which means that the drug is currently classified as having no accepted medical use and a high potential for abuse.

Chapter 3780 will inevitably impact multiple aspects of the workplace, including recruitment and retention efforts, safety plans, and drug-testing policies. Employers will need to think critically about how existing policies may need to be altered to accommodate the new law. For example, a blanket policy prohibiting the hiring of anyone who tests positive during pre-employment testing for cannabis will likely eliminate a higher number of applicants from consideration than in the past.  Easier access to the legal purchase of cannabis may also make it more likely that an employee will be under the influence at work.  Employers will want to notify employees that this new law does not change company policy prohibiting use, possession, or being under the influence of cannabis at work.  If your company’s policy is written so as to prohibit the use of “illegal” substances, the policy may need to be revised to restrict the use of now-legal recreational marijuana. Employers will also want to provide training to managers about observable behavior that could give rise to reasonable suspicion of use during the workday.

The ever-changing landscape of federal, state, and local legislation on marijuana use gives employers many issues to consider. Ulmer’s Employment & Labor Practice Group stays ahead of developing laws like the enactment of Ohio Revised Code Chapter 3780 and can help make sure that your policies and practices comport with the new law.