PUFF, PUFF, PASSED
- Zachary Splain
- Jan 28, 2024
- 3 min read
The recent legalization of recreational cannabis in Ohio has prompted a reevaluation of employment practices and policies for employers in Ohio.
I. WHAT’S NEW?
On November 7, 2023, Ohio voters chose to legalize recreational cannabis use. This initiative, which mirrors the legislation in twenty-three (23) other states, legalizes and regulates various facets of cannabis use.
o Ohioans voted to allow the cultivation, sale, purchase, possession, use, and home growth of recreational cannabis.
o As of December 7, 2023, residents aged 21 and older can legally possess up to 2.5 ounces of cannabis, 15 grams of cannabis extract, and cultivate up to six Cannabis plants in their primary residence or up to 12 plants per residence with multiple adult residents. [1]
o A 10% sales tax will be imposed with proceeds allocated to addiction services, communities with cannabis facilities, and social equity and jobs programs. [2]
II. NEW LAW, FED RULES:
Despite this shift, the law does not override federal restrictions, including regulations set forth by the United States Department of Transportation.
o Some employers may still be required by federal law to prohibit cannabis consumption if any position within the business involves safety-sensitive positions.
o OSHA requires a drug-free environment for roles involving transportation or heavy machinery.
o Employers have the right to create and enforce a policy that forbids cannabis use.
III. EMPLOYMENT TERMINATION:
Crucially, an employer's decision to terminate an employee for cannabis use under a workplace policy is deemed "just cause" for unemployment compensation. [3]
o While the new legislation legalizes the recreational use of cannabis, it in no way inhibits an employer’s ability to take adverse action against an employee for cannabis use in violation of company policies and procedures.
o If you did not allow cannabis use prior to the passage of Ohio Revised Code (R.C.) Section 3780 et. seq., this should not change anything for you or your business moving forward.
IV. DRUG-FREE WORKPLACE PROGRAM:
Ohio’s Drug-Free Workplace Program (“DFWP”), designed to deter illegal drug use on or off duty, remains unaffected by the new law. The program employs education, testing, and counseling services to identify and address illegal drug use. Importantly, participating in a DFWP qualifies employers for grant rebates or discounts for workers' compensation. Based on this fact alone it pays to forbid cannabis use.
V. ADDRESS CANNABIS USE SOONER RATHER THAN LATER:
Employers are empowered to establish and enforce drug testing, drug-free workplace, and zero-tolerance drug policies. The following areas of focus should help employers address the incoming challenges:
o Clarity in company policy language regarding cannabis consumption, possession, and impairment at work;
o Policies should articulate the company's stance on off-duty consumption and its potential impact on job performance;
o Create/implement impairment detection policies, considering pre-employment, post-accident, and on-the-job scenarios.
o Anticipate potential increases in workplace accidents and injuries associated with low level/seasonal workers/independent contractors that may not be subject to the same testing requirements as a W2 employee.
o Transparent creation, promulgation and enforcement of workplace drug policies will put employers in the most defendable position.
VI. CONCLUSION:
Ohio Revised Code 3780 et. seq. does not restrict or otherwise abridge an employer’s ability to forbid the use of cannabis. Put another way, if the employer previously forbade cannabis use, this law does not change that outcome. The real challenge will be addressing workplace accidents followed by positive drug tests. Due to the linger nature of cannabis in the body, employers can foresee increased push-back against claims that cannabis was the underlying cause of a workplace accidents. When in doubt, a simple prohibition against cannabis use will survive any legal challenge. Any attempt to create a nuanced approach to permitting cannabis use outside of the workplace will undoubtedly create more headaches than it is worth.
References
(1) https://www.drugtestlawadvisor.com/2023/11/ohio-passes-recreational-Cannabis -law-what-employers-should-know/#:~:text=The%20new%20law%20also%20permits,of%20the%20employer's%20drug%20policy.