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On November 7, 2023, Ohio passed Issue 2, legalizing recreational marijuana for adults 21 years of age and older. The law will take effect on December 7, 2023, although it is expected that we will be well into 2024 before Ohio recreational dispensaries open to the public. In the interim, employers will need to make some decisions and revise and/or put policies into place regarding marijuana use by employees. 

Under the statutory requirements for Issue 2, the following was specifically enumerated: 

1. Employers are not required to permit or accommodate an employee’s use of marijuana, either during work hours or outside of work time.
2. Employers may still refuse to hire, fire, discipline, or otherwise take an adverse employment action against an employee because of the employee’s use or possession of marijuana, either during work hours or outside of work time.
3. Employers may still establish and enforce a drug testing policy, drug-free workplace policy, and/or a zero-tolerance policy for marijuana.
4. Employers may still utilize the Ohio Workers’ Compensation rebate/discount program by participating in the drug-free workplace program. 

Importantly, if an employee is discharged for use or possession of marijuana in violation of a written drug-free workplace or similar policy, the employee will be deemed to have been terminated “with cause” for purposes of unemployment benefits, likely resulting in the denial of the same. 

Based on the rights available under this new statute, employers in Ohio have a few decisions that they will need to make, some of which are as follows: 

1. Will they continue to test for marijuana during established drug testing?
2. Will they prohibit the use of marijuana by employees during work hours?
3. Will they prohibit the use of marijuana by employees outside work hours?
4. Will they continue to participate in optional, state programs for drug-free workplaces to receive discounts on Workers’ Compensation premiums? 

In addition, if an employer is considered a federal contractor, it may also have requirements to implement a drug-free workplace, with drug testing. Such program is still likely to include testing for marijuana. Although it is expected that marijuana may be removed as a Schedule I drug within the next 12 months, this has not yet occurred. Therefore, an employer’s status as a federal contractor may still require testing and discipline for marijuana use, despite the presence of the new Ohio legalization. Employers with questions regarding their status as a federal contractor and the requirements to create a drug-free workplace should speak with their employment attorney as soon as possible to ensure compliance once the statute takes effect on December 7th. 

If an employer decides to move forward with the decision to not hire or to discipline/terminate in the event of a positive marijuana test, the employer needs to reduce this policy to writing to ensure everyone has advanced notice. Otherwise, the employer risks being liable for increased unemployment taxes as the termination will be deemed a “without cause” termination for purposes of unemployment benefits. 

If you have any additional questions regarding medical marijuana, the legalization of recreational marijuana, or the policy implementations for your workforce, please contact Bryan Meek, Partner and Co-Chair of BMD’s Employment and Labor Law Group at bmeek@bmdllc.com or (330) 253-5586.