As of December 7, 2023, Ohio became the 24th state to legalize recreational marijuana, hitting a new “high” or low, depending on your view.

Back on November 7, 2023, Ohio voters passed Issue 2. Contrary to many reports, Issue 2 is not a constitutional amendment. Instead, Issue 2 creates a new law, Chapter 3780 of the Ohio Revised Code. This is an important distinction because with a new law, not a constitutional amendment, the Ohio legislature can propose changes to Issue 2, and it has already done so. While recreational use of marijuana in certain circumstances is likely here to stay, further restrictions are expected to be passed in the near future.

Employers and Recreational Marijuana

What does this mean for Ohio employers? Not as much as some feared.

Under the current statute, Ohio employers retain the following rights.

• Employers are not required to permit or accommodate an employee’s use, possession, or distribution of marijuana.
• Employers are still 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 marijuana.
• Employers are still permitted to establish and enforce drug-testing policies, drug-free workplace policies, or zero-tolerance drug policies.
• If an employer terminates an employee because of that individual’s marijuana use in violation of the employer’s drug-free workplace policy, zero-tolerance policy, or other formal drug program or policy, the employee will be considered to have been discharged for just cause.

Even though the statute retained employers’ rights to address marijuana, employers should still take time to review their current policies and decide if employee use of recreational marijuana, even off duty, is something they want to prohibit or permit.

Some questions you will want to consider:

• Do you want to prohibit employees from using marijuana, on or off duty?
• Do you want to include marijuana in your pre-employment drug-testing panels?
• Will your position on marijuana impact your ability to hire?
• Do you want to prohibit only working under the influence of marijuana?
• Do you have federal contracts that impact your drug and alcohol policy? Remember, marijuana use is still illegal under federal law.
• Do your current policies reflect your desired outcome, given that now marijuana will not automatically be covered by a prohibition on “illegal drugs”?
• Do you have safety-sensitive positions that require special treatment under your drug and alcohol policies?

Workplace Safety

Speaking of safety, studies across the country show a statistical correlation between legalized recreational marijuana and increased workplace injuries. As such, some employers are considering amending existing policies, including adopting post-accident drug testing.

OSHA does not have a standard addressing drug use or intoxication in the workplace, nor does OSHA dictate when post-accident testing may or may not be conducted. However, OSHA does require that employers ensure their post-accident drug testing policies are not designed to deter or discourage injury reporting.

According to OSHA, employers’ post-accident drug testing should promote workplace safety, and not penalize employees for reporting work-related injuries. That means employers may conduct drug testing to evaluate the root cause of a workplace incident that harmed or may have harmed employees. But, if employers choose to do so, they should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries. That is, OSHA does not want employers to only conduct drug tests for injured employees.

That is not true if you participate in the Ohio Bureau of Workers’ Compensation Drug Free Safety Program. Employers that are enrolled in the Drug Free Safety Program may conduct mandatory post-accident drug testing for all employees injured at work, regardless of what caused the injury.

If you are not enrolled in the Drug Free Safety Program, it is best to only conduct post-accident drug testing for employees whose conduct may have been the result of intoxication, without regard to whether that employee was actually injured.

Conclusion

There is no one-size-fits-all approach to addressing recreational marijuana in your workplace. Each workplace has its own challenges, and each state has its own law addressing marijuana use and testing.

For more information regarding potential OSHA, workers’ compensation, and employment issues relating to legalization of marijuana, visit www.amfdayton.com to reach Auman, Mahan, and Furry Attorneys Amy Mitchell, Abbie White, or Doug Jenks. Jenks and White also host a Health and Safety Law Report podcast, and have an episode on this topic, “Legal Recreational Weed and Work: What’s an Employer to Do?” available on
Spotify at http://tinyurl.com/5y9xssby.