Ohio’s New Recreational Marijuana Law: What Employers Need To Know

Ohio voters advanced cannabis culture in the state on November 7 by approving a ballot proposal legalizing recreational marijuana.

This makes Ohio the 24th state in the United States to permit cannabis use for non-medical purposes. While this change brings new freedoms for adults, employers in Ohio are provided broad rights and responsibilities under the new law.

As approved by Ohio voters, the law permits adults to possess up to 2.5 ounces of marijuana or 15 grams of marijuana extract. Individuals can purchase marijuana from retail locations or grow up to 12 plants in a private residence where at least two adults reside. Retail cannabis products will be subject to a 10% tax.

However, when it comes to employers, it’s crucial to understand that there are no explicit protections offered to recreational marijuana users. Section 3780.35 of the law, titled “Rights of Employer,” makes this clear. Here are the key points:

• The law does not require an employer to permit or accommodate an employee’s use, possession, or distribution of adult-use cannabis in compliance with the law.
• Employers retain the right to refuse to hire, discharge, discipline, or take adverse employment actions against individuals who use, possess, or distribute cannabis in compliance with the law.
• Employers can continue to establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance drug policies.
• The law does not interfere with any federal restrictions on employment, including those adopted by the United States Department of Transportation.
• Individuals cannot initiate legal action against employers for adverse employment actions related to their use of cannabis.
• The law does not affect the authority of the administrator of workers’ compensation to grant rebates or discounts to employers participating in a drug-free workplace program.

If an employee is discharged because of their cannabis use, it is considered “just cause” if their use violated the employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating cannabis use.

Employers in Ohio should be proactive in addressing the changes brought about by the legalization of recreational marijuana. Here are some important considerations:

• Employers should review and, if necessary, update their drug testing policies and workplace rules to ensure they address recreational marijuana use by Ohio workers.
• Communicate the changes to employees and make sure they understand the implications for workplace conduct.
• Be consistent in enforcing drug policies and ensure that any adverse employment actions are taken per established policies.
• For businesses subject to federal regulations, such as transportation, ensure compliance with federal rules.

It’s worth noting that Ohio’s recreational marijuana measure was a ballot initiative, not a constitutional amendment, meaning that state lawmakers can make adjustments or even repeal the law in the future. As of now, the provisions related to possession and home cultivation for adults are set to take effect December 7. Regulators are expected to begin issuing retail licenses by late 2024. Employers are advised to adjust policies and procedures accordingly.

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