RBS News

RECREATIONAL MARIJUANA

Beginning on December 7, 2023, recreational marijuana will be legal in Ohio.
This means that all Ohioans 21 years and older will be able to legally sell, purchase,
use and grow recreational marijuana. Specifically, adults can legally possess up to 2.5
ounces of marijuana, possess up to 15 grams of cannabis extract and grow up to 6
marijuana plants at home.

How will this impact the workplace? The major question vexing Ohio
businesses is whether or not an employer can continue to prohibit the sale, possession
or use of marijuana by employees while on company premises and/or while working.
The new law addresses and allays these concerns by unequivocally stating that an
employer is not required to “accommodate an employee’s use, possession, or
distribution of adult use cannabis.” Thus, like Ohio’s medical marijuana law, which
remains unchanged, employers can continue asserting their rights to demand a drug-
free workplace.

Of particular importance to employers, the new law addresses the following
concerns:

- Employers are not prohibited from refusing to hire, discharging,
disciplining or otherwise taking an adverse action against an individual
because of the individual’s use, possession, or distribution of marijuana;
- There are no new causes of action created that would permit employees
and/or applicants who have been subjected to an adverse action due to
their legal use of marijuana to sue an employer;
- Employers are specifically permitted to continue enforcing their drug-
free workplace policies and testing procedures; and
- 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.

The most effective and easiest way to view the new law is to equate marijuana
with alcohol and treat them identically. If two supervisors have reason to suspect that
an employee is impaired at work, implement the drug-free workplace policy and
require testing. If the employee tests positive for either alcohol or marijuana, apply the
discipline contained in the policy. The same holds true for pre-employment testing,
post-incident testing and return to work testing.

While marijuana will now be treated like alcohol in the workplace, all
employers must also be cognizant of the fact that marijuana, unlike alcohol, can
remain in one’s system up to a month after use. This reality has caused some
employers to revamp their drug-free workplace policies and treat safety-sensitive
positions different from other positions.

The new recreational marijuana law should provide the impetus for all
employers to review their drug-free workplace policies and update where necessary.
We recommend updating it to specify that it includes marijuana, recreational or
medical. Employers should also think thru the new law and ensure that their
workforce needs will not be restricted by their current policies.

Please feel free to contact your RBS attorney to discuss the new recreational
marijuana law and its impact on your business.