As of November 7, 2023, Ohio became the 24th state to legalize adult recreational use of marijuana. Ohio voters passed Issue 2, also known as An Act to Control and Regulate Adult Use of Cannabis (the “Act”), by a 57% to 43% margin, and the Act is set to take effect on December 7, 2023. The November 7 citizen-initiated ballot measure legalizes the possession, home cultivation and retail sale of cannabis for adults 21 and older.
Despite this big development under Ohio law, employers’ legal obligations and restrictions surrounding marijuana are relatively unchanged at this time. Consistent with Ohio’s existing Medical Marijuana Control Program, the Act supports employers’ efforts to maintain a drug-free workplace, including policies prohibiting use of marijuana. Specifically, Ohio employers may continue to establish and enforce a drug testing policy, drug-free workplace policy and/or a zero-tolerance drug policy. Further, the Act provides the following protections for employers:
- Employers do not have to permit or accommodate an employee’s use, possession or distribution of marijuana; and
- Employers may discharge, discipline, refuse to hire or otherwise take an adverse employment action against an individual because of that individual’s use, possession or distribution of marijuana.
Importantly, an employee who is discharged from employment because of their use of marijuana in violation of an employer’s program or policy is considered to have been discharged for “just cause” under Ohio’s unemployment compensation law. The Act does not permit an employee to bring a legal action against an employer for discharging, disciplining, discriminating, retaliating, refusing to hire or otherwise taking an adverse employment action against the employee related to the individual’s use of marijuana. Nor does the Act purport to interfere with existing federal restrictions on drug use and employment, including for example U.S. Department of Transportation regulations.
The key takeaway here is that although Ohio, like other states before it, has legalized the private use of marijuana for non-medical, recreational purposes, the law does not require that employers change the application or enforcement of any existing drug policies, nor does it prevent employers from adopting new drug policies.
The Act is set to take effect 30 days following the election – on December 7, 2023. However, as a citizen-initiated statute, the law is not set in stone. The Ohio legislature maintains the right to modify and refine the law. We will provide employer updates as they develop.