Recreational Marijuana and the Impact on Employers and the Workplace

On Tuesday, November 7, Ohio voters passed Issue 2 legalizing recreational marijuana effective December 7, 2023. Issue 2 allows for the sale and purchase of marijuana allowing adults who are 21 years old and older to use and possess up to 2.5 ounces of marijuana.

How does Issue 2 impact workplace drug policies and employment practices?

The most important thing that employers need to know is that Issue 2 and its resulting statute, O.R.C. 3780, does not require employers to make immediate or sweeping changes to their drug free workplace policies or drug testing protocols.

Employees will be legally able to use recreational cannabis, however the law also provides that employers may legally discriminate against them based on that choice.

RCO Law's Employment and Labor Practice Group has assembled frequently asked questions that have originated from our clients.

Q: Can I prohibit employees from bringing legal marijuana products to work?

A: Yes. Employers are not required to accommodate an employee’s legal use of cannabis. R.C. 3780.35(A)(1).

Q: Can I refuse to hire, discipline, or terminate an employee because they test positive for THC even if it was during non-working hours?

A: Yes. Employers may continue to make adverse employment decisions based on an employee’s legal use of cannabis. R.C. 3780.35(A)(2). Employees cannot sue an employer for making an adverse employment action based on that employee’s use of legal cannabis. R.C. 3780.35(A)(5).

Q: Can I continue to test for THC in my testing protocols?

A: Yes. Employers can still maintain a drug testing policy, drug free workplace policy, or zero tolerance drug policy. R.C. 3780.35(A)(3).

Q: My business is subject to Federal Department of Transportation Regulations. Do I still follow these rules?

A: Yes. Employers must still comply with Federal Department of Transportation regulations. R.C. 3780.35(A)(4).

Q: Will I continue to receive Bureau of Worker Compensation (BWC) grant rebates for maintaining a drug free workplace program?

A: Yes. Issue 2 does not affect BWC grant rebates or discounts based on an employer’s maintenance of a drug free workplace program. R.C. 3780.35(A)(6).

Q: If I terminate an employee for testing positive for THC will they be able to collect unemployment benefits?

A: Probably not. As long as you have a drug-free workplace, zero tolerance or other formal policy prohibiting the use of cannabis, the termination will be considered “just cause” for purposes of unemployment benefits. R.C. 3780.35(B).

Employer protections are a part of Issue 2, however, now is the time for you to take a good look at your existing policies and decide whether to make changes. With the legalization of marijuana there will be shifts in societal attitudes followed by the inevitable increased use of recreational cannabis across all employee demographics.

You may want to consider whether your current policies will restrict job candidate pools or adversely impact your current workforce.

Employers have a range of options when it comes to testing protocols including:

• Discontinue all drug testing;

• Continue with current testing protocols to include pre-employment, random, post-accident, reasonable suspicion testing for all panel drugs, including cannabis;

• Remove cannabis from pre-employment testing panels, but continue to screen for cannabis;

• Remove cannabis from all testing panels; and

• Test for all drugs but only specific occupations or positions (e.g., safety-sensitive positions).

A one-size-fits-all answer for employers regarding Issue 2 does not exist for the Marijuana Legalization Initiative. To assist with an analysis on how Issue 2 impacts your industry and workforce, call RCO Law's Labor and Employment Practice Group for a comprehensive review of your policies and an informative discussion on the options that best suit your needs.