It’s been just over a year since recreational marijuana became legal in Ohio. The measure passed overwhelmingly 57-43%, making Ohio the 24th state to legalize marijuana.
In Ohio, Dispensaries are Growing like Weeds
With the passing of Issue 2, recreational use, possession, and home growing began Dec. 7, 2023, while retail sale of recreational marijuana was required to start on or before Aug. 7, 2024. As a result, there is more access to both medical and recreational cannabis than ever before.
As the map shows, today there are currently 127 dispensaries with certificates of operation, 14 with a provisional license, and dozens more opening within the next 6-12 months. So, if you don’t yet have a dispensary nearby, you likely will soon enough.
There is still some resistance to the legalization of recreational marijuana, of course. Like most other states that have legalized cannabis for recreational use, Ohio allows local jurisdictions to enact ordinances to prohibit or limit the operation of adult-use cannabis businesses within their boundaries.
But, as of Sept. 6, 2024, the 110 Ohio municipalities that have passed marijuana moratoriums represent a small fraction (less than 5%) of the 924 incorporated municipalities and 1,307 townships in the state.
For comparison, 73% of municipalities in Michigan (1,300 out of 1,773) opted out after legalization. In New York, about 50% of municipalities (753 out of 1,520) opted out of allowing dispensaries within their boundaries.
To understand how this availability affects Ohio employers, we need to review marijuana’s legality at the state and local levels and discuss its global legal status, just in case.
Do Ohio Employers Have to Accommodate Employees’ Marijuana Use?
While one state, Massachusetts, and several courts have been hinting at an accommodation exception, the law is clear in Ohio: No accommodation is required.
This could all change if marijuana is rescheduled under federal law. If marijuana is reclassified from a Schedule I narcotic to a Schedule III, it is possible that some employees will be entitled to use marijuana products to treat medical conditions while at work.
However, this change would not require employers to permit on-the-job use or intoxication under state law, as employers must still ensure workers are fit for duty and do not pose a threat to the safety of themselves or their fellow workers. Rescheduling would also not allow for recreational use, only affecting legal medical use with an actual prescription under federal law.
A Quick Note on Drug Scheduling
Under the Controlled Substances Act, the federal government – which has largely relegated the regulation of drugs to the Drug Enforcement Administration (DEA) – puts each drug into a classification, known as a schedule, based on its medical value and potential for abuse.
On Aug. 29, 2023, the Department of Health and Human Services (HHS) recommended to the DEA that marijuana be rescheduled from Schedule I to Schedule III under the Controlled Substances Act (CSA), and the DEA published the proposed rescheduling on May 21, 2024. It is currently reviewing HHS’s recommendation along with 43,000 comments. The final determination of reclassification will fall to the new Trump Administration in 2025.
Can Employers Have a Drug-Free Workplace After Issue 2?
Issue 2 gives very broad authority for employers to control their workplace. Section 3780.35 states that “nothing in this chapter…(A)(3) Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.”
So, yes, your workplace can still have a zero-tolerance drug policy that prohibits employees from using, possessing, or being under the influence of illegal drugs (and sometimes certain legal drugs) while on the job. A violation of this sort of policy typically results in immediate disciplinary action, including employment termination, for any violation.
Some of the pros of such a policy include:
- It meets the mandatory requirements of the Drug Free Workplace Act.
- It promotes a safe working environment.
- It improves productivity and performance by preventing issues relating to drug use.
- It protects a company’s reputation and reduces legal liability.
But a few downsides to a zero-tolerance policy are:
- It conflicts with state laws (marijuana).
- Employees consider such a policy punitive.
- You will likely lose potentially good candidates/employees.
- You must check with Collective Bargaining Agreement/union for enforceability.
So, Can Employers Still Drug Test?
Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit – drug tests. For the most part, this area is regulated by state and local laws.
Ohio employers are authorized to drug test employees:
- During pre-employment screening.
- Post-accident.
- Randomly.
- Based on reasonable suspicion.
- After an employee returns to work after a positive test.
If you want an advanced level of workers’ compensation discounts, employers who drug test must have employee assistance program (EAP) resources, employee education, and supervisor training.
Drug tests are subject to legal claims, and employees can file complaints if there is a breach of privacy. Other issues include disability and other discrimination claims, invasion of privacy, and defamation.
What drug you want to screen for will determine the type of test, or panel. Each panel is designed to address specific needs, from detecting illegal street drugs to commonly abused prescription medications. The choice of panel depends on legality, workplace environment, industry standards, and specific drug use concerns. Urine, hair, saliva, and blood are all means of testing employees.
And don’t let the bald guys fool you – if their excuse for not getting tested is that they just went to the barber and have no hair left on their head or face, you can look at them and say, “Any hair on your body can be tested … Any.”
A Quick Note for Companies with Federal Contracts
If your company is a federal contractor, you are required to adhere to the Drug Free Workplace Act of 1988. This applies to all federal contractors receiving more than $100,000 and all recipients of federal grants.
If either of those applies to you, you MUST establish a Drug Free Workplace. The Drug Free Workplace Act covers only illegal drugs as defined under the Controlled Substances Act and prescription medications being used in an unlawful manner (e.g., without a prescription or in a way that violates company policy).
While it does not mandate drug testing, it does set the foundation for employers to implement drug-free workplace policies, which may include testing. The Act’s purpose is to reduce workplace accidents, enhance productivity, and protect public resources. Failure to comply can result in suspension or termination of federal contracts/grants or debarment.
Drug-Free Workplace Safety Policy & Workers’ Compensation Implications
It’s good practice to review your drug policy annually to make sure it is legally sound and up to date. While you’re at it, make sure you’re working with a reputable testing facility and post notices, so employees know the consequences of their actions.
You must test for alcohol within 8 hours and for marijuana, barbiturates, or any other drug within 32 hours. Under the Ohio Bureau of Workers’ Compensation (BWC) system, if an employee refuses to get tested or tests positive after post-accident testing, the rebuttable presumption law may apply.
This shifts the burden to the employee to prove that the intoxication or drug impairment was not the cause of the workplace accident. It’s critical to remember that you need to document reasonable cause for the drug test. Without reasonable cause, the BWC will deny your rebuttable presumption claim.
Unemployment Compensation Implications
An employee’s termination for use of marijuana in violation of the employer’s drug policy is deemed “just cause” for purposes of unemployment compensation. According to Section 3796.28 of the Ohio Revised Code (A)(2), employers are not prohibited from “refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s use, possession, or distribution of medical marijuana.”
The most effective and easiest way to view the new law is to equate marijuana with alcohol and treat them identically. If supervisors have reason to suspect that an employee is impaired at work, they are allowed to implement their drug-free workplace policy and require testing. If the employee tests positive for either alcohol or marijuana, employers can apply the discipline contained in the policy.
Do You Operate in Other States or Countries, or Do Your Employees Travel?
America may be the largest segment in the world to legalize recreational use, but it’s important to remember that most countries are still very reluctant to make marijuana legal at all.
While it may be legal in Ohio, make sure your employees have done their homework before they travel. Depending on what borders they cross while traveling abroad, if your employees have or use marijuana – even medically – you may not see them for a few months, or years, or ever again.
This was the case with U.S. women’s basketball superstar Brittney Griner’s detention in Russia in 2022. In the United Arab Emirates (UAE), airport security can detect trace amounts of marijuana. In 2021, Billy Hood, a British football coach, was caught in UAE with CBD vape oil and received a 25-year prison sentence that was reduced to 10 years on appeal.
In Indonesia, sentences for possession range from 4 to 12 years for more than 1 kg of marijuana. In Japan, you can receive up to 5 years for the first drug offense. In Saudi Arabia, first-time offenders may be imprisoned for up to 1 to 6 months, but good news: they eliminated flogging as a form of punishment in 2020. Other countries, though, like the Philippines, still have the death penalty for possessing a pound of marijuana.
Changes on the Horizon
While Issue 2 has gone into effect, changes are sure to come. Gov. Mike DeWine, Senate President Matt Huffman, and House Speaker Jason Stephens have all already stated publicly that the following reforms are necessary:
- Increase sales tax on marijuana products.
- Alter tax distribution.
- Add protections for children.
- Increase law enforcement funding.
Last year, HB 86 was amended to address many of those issues by:
- Limiting home grow amount (6 plants/household, not per person).
- Increasing excise tax from 10% to 15%.
- Diverting up to 28% of tax to fund jail construction/renovation.
- Adding more strict regulations on marketing that would appeal to children.
- Limiting smoking to private residences vs. designated smoking areas in public.
- Increasing penalties for violations.
More recently, on Nov. 6, 2024, Sen. Huffman introduced SB 326. The bill is currently focused on prohibiting a person from selling intoxicating hemp products in Ohio. Intoxicating hemp product is defined as a product with more than 0.5mgs of delta-9 THC per serving, 2 mgs per package, or 0.5 mgs of total non-delta-9 THC per package.
This hemp (and delta-8) is being marketed in stores across Ohio as candy, cereal, gummy candy, and other products that are attractive to children. Because intoxicating hemp products are not currently regulated, Ohio law does not prevent its sale to children.
According to data from the Ohio Poison Control Center, there have been at least 257 reports of Delta-8 poisoning in Ohio over the last three years. In 2023 alone, there were 102 reported poisonings, including 40 involving children under the age of 6. Ninety percent of these children required emergency care or were hospitalized after ingesting the intoxicating hemp.
SB 326 could be a vehicle for the additional marijuana reforms previously mentioned before the end of 2024. It will be important for Ohio employers to continue keeping an eye on this legislation and topic in the future, as the details are not all set in stone.
Areas of Concern
Talk with your legal counsel to determine the best line of defense when crafting or revising your drug-testing policies, especially as they relate to marijuana now and into the future. Specific areas of focus should include:
- Education for employees traveling to other states or abroad to be familiar with all local laws, as they may be significantly different.
- Proper documentation of cause to avoid terminating with no evidence of “impairment.”
- Knowledge of the reason for a medical marijuana card could lead to knowledge of disability.
- Policy and Collective Bargaining Agreement implications.
Action Steps
- Adopt policies emphasizing that it’s illegal to work under the influence or consume drugs at the workplace, and that there will be legal consequences for not obeying those policies.
- Work with a reputable drug testing company that administers random testing, documents a comprehensive and defensible chain of custody, ensures employee privacy, and complies with all state and federal regulations.
- Keep watching what the House and Senate may do on clarifying the marijuana statute.
Tony Fiore serves clients and communities in multiple roles for Kegler, Brown, Hill + Ritter, including as an Attorney, Lobbyist, Association Executive, PAC Treasurer, and County Foundation leader.
Tony Fiore
afiore@keglerbrown.com
keglerbrown.com/fiore
M: 614-906-8669
O: 614-462-5428
@TonyFioreEsq
