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The passage of Issue 2 on Election Day will have an impact on Ohio employers. How much of impact is uncertain and likely employer-dependent.
Much like when medical marijuana was passed several years ago, Issue 2 does not give employees the ability to work under the influence of marijuana. Employers can still have drug testing policies and drug testing policies which test for marijuana. In fact, as is permissible with tobacco and alcohol, both currently legal but regulated, an employer could have a zero tolerance policy if that is what they wanted to do.
In fact, Issue 2’s language is clear that an employer is not required to “accommodate an employee’s use, possession, or distribution of adult use cannabis.” Further, employers are still able to refuse to hire as well as “discharging, disciplining, or otherwise taking an adverse employment action against an individual … because of that individual’s use, possession, or distribution of cannabis.” It goes on to more clearly state that an “individual who is discharged from employment because of that individual’s use of cannabis shall be considered to have been discharged for just cause.”
In short, there will be no cause of action under the new law for employees based on any refusal to hire or disciplinary action by an employer. This will be true even if an employee’s marijuana use is lawful and off-duty. Further, in the unemployment compensation arena, an employer has “just cause” to terminate an employee for use of marijuana in violation of the employer’s drug or drug testing policy.
Ultimately, as it is now with other legal but heavily controlled substances, it will be up to each employer to set their drug policy and communicate it to their employees. Certainly, some employers will continue to test and others still stop testing. Ohio employers have some time to discern how to handle this decriminalization and de-stigmatizing of marijuana but planning should start sooner than later. That said, just because marijuana is legal does not mean that employers have to permit its possession in the workplace, and certainly not its use.
All that said, Ohio employers would be naïve to think that this law’s passage means the status quo reigns supreme. This is a clear indicator of society’s increasingly tolerant attitude toward the use of marijuana. All Ohio employers will need to consider whether their current drug policies, drug testing policies and attitudes and values will continue to serve their business and, specifically, hiring and retention needs.
If you have any questions regarding this issue, please call Michael J. Bogdan (mbogdan@www.kwgd.com) at 330-497-0700 or any of the attorneys in Krugliak, Wilkins, Griffiths & Dougherty’s Labor & Employment Law Practice Section.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.