Cannabis will soon be legal for adult consumption in Ohio after voters passed Issue 2. The new law, An Act to Control and Regulate Adult Use Cannabis (the Act), is set to take effect in December of 2023. The Act will permit controlled and regulated sales of recreational cannabis subject to the statute and rules adopted by a newly established Division of Cannabis Control within the Department of Commerce. Without a doubt, Ohio employers will have concerns about how this may impact the workplace, employment policies, and practices.
The Act addresses these concerns at R.C. 3780.35, which clarifies that Ohio employers are not required to allow or accommodate an employee’s recreational cannabis use. After cannabis is legalized, employers will continue to be within their right to make employment decisions based on an applicant or employee’s cannabis use, even if such use is not in violation of state law. Further, the Act makes clear that employers may continue to establish and enforce drug testing, drug-free workplace, or zero-tolerance policies that include restricting or prohibiting cannabis use. Additionally, state worker’s compensation drug-free workplace programs and federal employment restrictions, particularly those outlined by the Department of Transportation, remain unaffected.
More importantly, nothing in the Act gives applicants or employees the right to file suit against an employer for taking any adverse action against them related to the person’s use of cannabis. Indeed, if an employer discharges an employee due to their cannabis use in violation of the employer’s policies, the Act provides such a termination will be for just cause under Ohio’s unemployment compensation program. This makes the employee ineligible for such benefits.
Employers are encouraged to review and update their employment policies and rules to reflect this change in Ohio law. If you or your employer have questions regarding the legalization of cannabis and its effect in the workplace, please contact the Walter Haverfield Labor & Employment Services Group.