Ohio Issue 2 Explained

With the recent passage of Issue 2, the possession, home cultivation and retail sale of cannabis for adults age 21 and older will be legal in Ohio.

This new law raises many questions and concerns for employers. In summary, an Ohio employer’s legal obligations and restrictions surrounding an employee’s use of marijuana will remain relatively unchanged. While Issue 2 makes it legal to possess and use marijuana, there is nothing in the language of Issue 2 that requires employers to allow or permit employees to use marijuana. Unless the Ohio legislature enacts additional provisions to change the legal landscape related to marijuana in the workplace, employers should look to Ohio’s existing Medical Marijuana Control Act (the “Act”) and existing guidance from the Ohio Bureau of Worker’s Compensation to understand their legal rights. The Act expressly supports employers’ efforts to maintain a drug-free workplace, including policies prohibiting the use of marijuana. Specifically, Ohio employers may continue to establish and enforce a drug testing policy, drug-free workplace policy and/or a zero-tolerance drug policy. Further, the Act provides the following protections for employers:

·         Employers do not have to permit or accommodate an employee’s use, possession or distribution of marijuana; and

·         Employers may discharge, discipline, refuse to hire or otherwise take an adverse employment action against an individual because of that individual’s use, possession or distribution of marijuana.

·         an employee who is discharged from employment because of marijuana use in violation of an employer’s policy is considered to have been discharged for “just cause” under Ohio’s unemployment compensation law. The Act does not permit an employee to bring a legal action against an employer for discharging, disciplining, discriminating, retaliating, refusing to hire or otherwise taking an adverse employment action against the employee related to the use of marijuana. Likewise, the Act does not purport to interfere with existing federal restrictions on drug use and employment, including for example U.S. Department of Transportation regulations.

A key takeaway is that although Ohio, like other states, has legalized the private use of marijuana for recreational purposes, the law does not require that employers change the application or enforcement of existing drug policies, nor does it prevent employers from adopting new drug policies.

Ohio employers should consider whether their current drug policies continue to serve their business needs.  With an already tight labor market, some employers are electing to only drug test for safety sensitive positions. Employers also should carefully review drug policies to ensure compliance with Ohio and federal law and make sure their policies are communicated clearly and enforced consistently.

The new law is set to take effect on December 7, 2023. However, as a voter-initiated statute, the law is not set in stone. The Ohio legislature maintains the right to modify and refine the law. We will provide updates as they develop. If you have any questions, please feel free to contact us.