Earlier this month, Ohio joined the growing number of states to
legalize the recreational use of marijuana. The new law, which
becomes effective December 7, 2023, allows adults aged 21 and older
to (within certain restrictions) use, possess, transfer without
renumeration to another adult, grow, purchase, and transport
marijuana without being subject to arrest, criminal prosecution, or
civil penalties.

A natural question for Ohio employers is whether the new law
impacts their drug-free or zero-tolerance workplace policies,
e.g., can employment be denied or terminated due to a
positive drug test? Although the governor has asked the legislature
to make changes (not specifically focused on employer policies) to
the new law before it takes effect, the new law expressly states
that it does not:

Require employers to permit or
accommodate an employee’s use, possession, or distribution of
adult-use cannabis;
Prohibit employers from refusing to
hire, discharging, disciplining, or otherwise taking adverse
employment action against individuals with respect to hire, tenure,
terms, conditions, or privileges of employment because of an
individual’s use, possession, or distribution of cannabis that
is otherwise in compliance with the law;
Prohibit employers from establishing
and enforcing drug testing policies, drug-free workplace policies,
or zero-tolerance drug policies;
Permit individuals to sue employers
for refusing to hire, discharging, disciplining, discriminating,
retaliating, or otherwise taking an adverse employment action
against them with respect to hire, tenure, terms, conditions, or
privileges of employment related to their use of cannabis; or
Affect the authority of the
administrator of workers’ compensation to grant rebates or
discounts on premium rates to employers that participate in a
drug-free workplace program.

The new law also provides that individuals terminated because of
their cannabis use are considered to have been “discharged for
just cause” for purposes of eligibility for unemployment
benefits if their use violated an employer’s drug-free
workplace policy, zero-tolerance policy, or other formal program or
policy regulating cannabis use. Thus, the new law makes it clear
that employers can still enforce their drug-free and zero-tolerance
workplace policies. Ohio employers should consider advising
employees that the new law will not impact the enforcement of such
policies.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.