Ohio voters decided to join a growing number of states on November 7 by legalizing marijuana for recreational use for adults over the age of 21. Ohioans will soon be able to buy and possess up to 2.5 ounces of marijuana and 15 grams of marijuana extract. They can also possess marijuana plants to cultivate in their own homes. This is in addition to medical marijuana, which was legalized in Ohio in 2016. The new law is set to take effect on December 7, 2023. While there are still many questions left to be resolved prior to December 7, some of the most pressing concerns relate to how the new law will affect employers. The legal framework for marijuana use in Ohio is detailed in a new Revised Code section, § 3780.35, which addresses the rights of employers as it pertains to the legal use of marijuana. Section 3780.35 provides that nothing will require an employer to permit or accommodate an employee’s use, possession, or distribution of marijuana. Employers likewise remain empowered to drug test applicants and employees and refuse to hire or continue to employ those who test positive for marijuana. Employers are similarly permitted to maintain drug free workplace policies and do not have to allow their employees to use marijuana either recreationally or medicinally. In fact, some employers will continue to be obligated to maintain drug free workplace programs, as marijuana continues to be an illegal Schedule I narcotic under federal standards. This means that many businesses that work with the federal government must adhere to the Drug Free Workplace Act of 1988, which identifies marijuana as an illegal drug and requires employers to maintain a drug free workplace. An important note about the new law is that it is an initiated statute, meaning that it can be amended by the Ohio General Assembly at any time. Various members of the Ohio General Assembly, as well as Governor Mike DeWine, have already voiced intentions to revise, though not entirely repeal, the framework that was approved by voters. While it is unclear what revisions could be made, it seems very unlikely at this time that the employer protections provided in Revised Code § 3780.35 would be altered. With this significant change to Ohio’s drug laws, it is important that employers take time to evaluate their current drug policies. It is vital that employers provide clear policies and expectations to their employees about how the change in the law may impact them. However an employer decides to handle this situation moving forward, making sure that employees have a clear understanding of what is and is not acceptable will be key in maintaining a safe and productive work environment. If you have questions about how the change in Ohio’s marijuana law affects you, or if you would like guidance on your own drug policy, please contact one of the Labor and Employment Law attorneys at FGKS Law. For more information about FGKS Law attorneys and practice areas, please visit www.fgks-law.com.Recreational Marijuana in Ohio: How will Issue 2 Affect Employers?
