O-High-O: New Ohio Marijuana Law Provides Businesses Protections from Employee Lawsuits
On November 7, 2023, Ohio voters approved a ballot proposal legalizing marijuana for recreational use and cultivation by adults aged 21 and over. Ohio is now the 24th state to legalize marijuana for non-medical purposes. The law, which will be codified in Ohio Revised Code Chapter 3780, permits adults to possess up to 2.5 ounces of marijuana or 15 grams of marijuana extract. Adults will be able to purchase marijuana from retail locations or grow up to 12 plants in a private residence where at least two adults reside. Retail marijuana products will also be subject to a 10% tax.
The provisions related to possession and home cultivation for adults took effect today (December 7, 2023), and regulators are expected to begin issuing retail licenses by late 2024. Further, the law was approved as a ballot initiative, not a constitutional amendment, meaning that state lawmakers can make adjustments or even repeal the law in the future.
While publicity of the issue has focused on the impact for individuals, employers are no doubt wondering how the new law may impact their employment practices. Fortunately, the law contains specific provisions for employers, at set forth in O.R.C. 3780.35 and entitled “Rights of employer.” Crucially, the law provides no explicit employment protections for recreational marijuana users. Pursuant to O.R.C. 3780.35, the new law:
- Does not require an employer to permit or accommodate an employee’s use, possession, or distribution of recreational marijuana;
- Does not prohibit an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual's use, possession, or distribution of marijuana;
- Does not prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance policy;
- Does not interfere with any federal restrictions on employment, including regulations adopted by the U.S. Department of Transportation;
- Does not allow for individuals to initiate legal action against employers for adverse employment actions related to their use of marijuana, including discharge or refusal to hire;
- The law does not affect the authority of the administrator of the Bureau of Workers’ Compensation to grant rebates or discounts to employers participating in a drug-free workplace program; and
- 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.
As a result of these protections, employers should proactively review, and potentially update, their policies that could be impacted by the changes, including drug-testing, drug-free workplace rules, and zero-tolerance policies. These changes should also be effectively communicated to all employees. Employers are also encouraged to adopt, amend, or remind employees of policies prohibiting coming to work under the influence of alcohol or drugs, including recreational marijuana. Employers can also remind employees how even off-duty use of marijuana can impact their employment, particularly for employees who are “on call” at certain times. Again, employers are explicitly permitted under the law to take adverse employment actions based on marijuana use, even if it is only used while off-duty and discovered through a drug test.
If applicable, public employers must still comply with disciplinary requirements related to classified employees, even if the adverse employment action is related to legal marijuana use. Public employers must also be cognizant of the constitutional restrictions placed on pre-hire, random, and/or suspicion less drug testing.
In sum, while the new law provides certain freedoms to adult individuals related to recreational marijuana use and cultivation, it does not take away the freedom of employers to implement their own policies regarding marijuana use and provides explicit protections for employers when enforcing those policies.