By Bob Dunlevey of Taft/Law on Thursday, 11/30/2023
Effective December 7, the use, sale and home growth of recreational marijuana by Ohio residents 21 years and older is lawful. What does this mean for the workplace?
Employers are not required to permit an employee’s use, possession, or distribution of marijuana.
Employers may still refuse to hire, discharge, discipline, or take other adverse employment action against an individual because of that individual’s use, possession, or distribution of marijuana in the workplace.
Employers are still permitted to establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance drug policies.
If an employer terminates an employee for marijuana use in violation of a drug policy, the employee will be considered to have been discharged for just cause for purposes of unemployment compensation.
Nothing in the Act interferes with any federal restrictions on employment such as DOT requirements.
How Will Legalized Marijuana Impact Ohio Employers?
Employers regularly testing for marijuana are likely to see an uptick in positive drug tests causing challenges in recruiting and retaining employees – zero tolerance policies may become less workable.
Employers may see an increase in workplace accidents, performance issues, and conduct violations, as more employees come to work under the influence. A recent study found that the number of positive tests performed after workplace accidents soared 204% from 2012 to 2022 and that there has been a 55% increase in workplace accidents.
Next Steps for Employers
Inform Your Employees. Immediately inform your employees that this new law does not change the company’s position on marijuana.
Update Drug Policies. Update to provide clear notice to employees that even though now legal, possession or use in the workplace is prohibited OR consider softening your policies to accommodate some use but not in safety sensitive positions and not during the work day including lunches and breaks. But, remember OSHA requires employers to have a workplace free of recognized hazards and this may spawn an OSHA General Duty clause violation.
Amend Your Handbook. Make it a violation of your drug-free policy to use, possess or be under the influence of not only illegal controlled substances but also certain lawful ones.
Re-Evaluate Drug Testing Procedures. Employers should consider modifying their drug testing procedures, especially if they find that an increase in positive marijuana test results is making it difficult to screen, recruit or retain employees.
Update Your Workers’ Compensation Policies. These policies must also prohibit the use of certain lawful controlled substances as well as illegal ones.
Retrain Supervisors. They must recognize the signs of impairment in order for the employer to have reasonable suspicion to justify a post-accident drug test and the possible contest of the workers’ compensation claim through the rebuttable presumption that marijuana intoxication caused the incident.
Watch for Developments. The Ohio General Assembly is already considering possible modifications to the voter approved legislation including permitting municipalities to ban use and cultivation. Stay tuned!
Disability Accommodation
Enactment of the new law once again raises the issue of whether an employer, at least under state handicap discrimination laws, must make a reasonable accommodation for a disabled employee by permitting the use of marijuana. While the law does not require any “accommodation” of onsite use at a place of employment, requesting a waiver of an employer’s drug policy to use medical marijuana for treatment of a disability off work premises during non-working hours may be required as an accommodation. The law continues to develop on this undecided issue.
Conclusion
In light of Ohio approving the use of medical marijuana in 2016 for those suffering from specific medical conditions, many employers have already adjusted to dealing with these issues. This new law presents few additional legal challenges for employers but does cause the need to make employees understand possession, use or being under the influence at work is still unacceptable.
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