On December 7, 2023, the recreational use and possession of cannabis by adults in Ohio becomes legal through the enactment of RC Chapter 3780. Some employers are worried that their workforces will begin to go “up in smoke” on that date. However, the new law makes clear that, though adult marijuana use cannot be used as a factor to the user’s detriment in some aspects of the law, employers’ rights to maintain a drug-free workforce and at-will employment policies remain strong in Ohio.
RC 3780.35 explicitly provides that the new law DOES NOT:
- Require an employer to accommodate an employee’s use, possession, or distribution of cannabis;
- Prohibit an employer from refusing to hire or discipline, or taking any other adverse employment action against an individual because of that individual’s cannabis use, possession, or distribution;
- Prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
- Interfere with any federal restrictions on employment;
- Permit an individual to sue an employer for taking any adverse employment action against, or refusing to hire/promote/retain an individual, because of his or her use, possession, or distribution of cannabis; or,
- Affect the administrator of workers’ compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program.
Additionally, the law states that an individual who is discharged from employment because of that individual’s use of “weed” shall be considered to have been discharged for “just cause” for unemployment compensation purposes, if that person was in violation of the employer’s formal policy regulating the use of cannabis. And, RC 3780.33(H)(4) provides that public places are not required to accommodate the use of “the chronic”, either, so rest assured, employers will not have to provide ash trays in their break rooms.
So what is changing for employers with the enactment of this law?
From a legal standpoint, next to nothing. Employers may still discipline, terminate, or refuse to hire individuals who use, possess, or distribute “Satan’s spinach”– even if that individual claims to use it for medical purposes. Employers do not have to tolerate use by employees, either on or off the clock. Nothing is changing in the law as it relates to workers’ compensation (see November 6, 2023 MRFL legal update: https://meyersroman.com/fact-or-fiction-post-accident-drug-testing-in-the-workplace/.)
Unfortunately, we know that while a new law may not appear to affect employers on its face, that does not mean the law will not have anyl implications. Though the effects of RC Chapter 3780 are yet to be experienced, it is possible that people who did not previously use “Mary Jane” will begin to use it, while the seasoned users will begin to partake in a more public fashion. Now is the time for employers to reassess their workplace policies in the following ways:
- Employers should maintain any policies that relate to Department of Transportation or other federal restrictions. Safety is paramount.
- Employers should explicitly prohibit employees from being under the influence of “reefer” while performing work for the employer and/or on the employer’s property or in an employer’s vehicle.
- Employers should consider whether it would be prudent to ban employees from using “dope” both on and off the clock. Outright banning any employee use at any time could limit the talent pool in the currently tight job market. However, some employers believe that a hard stance against drug use by employees could be beneficial to their brand. Decide what stance is best for your company, based on your industry, and make sure that stance is explicitly defined.
- If an employer decides to allow employees to use “grass” on their own time, it should consider how that off-the-clock use could impact the employer and its image. Consider whether an employee being observed using “ganja” in public or on social media should be grounds for discipline. Consider also whether clients or customers could detect the odor of “electric lettuce” on an employee, even if he or she is not currently under the influence. Determine whether possession or use on the employer’s property should be grounds for discipline. Craft formal workplace rules that reflect the image that is important to you and your industry.
- Ensure that all rules are drafted so they may be enforced uniformly. The more specific a workplace rule is, the easier it is to be enforced against all employees in a uniform manner.
- Each policy should be clear, in writing, and explicitly state the consequences for each rule violation. They should note that even though cannabis use is now legal in Ohio, the employer’s rules still apply to employees. Employees should be informed of and trained on all policies, and employers should require each employee to indicate, in writing, that he or she has been given a copy of the policies, that he or she has read them, and he or she understands them.
- Ensure that your rules are being enforced uniformly. If your policy prohibits an employee from “pot” use, do not make exceptions for those who claim that they need it for medical reasons. Do not let any violation slide and follow your disciplinary policy.
- Train management on detection of cannabis impairment. “Wacky tobacky” impairment often presents differently and cannot be detected in the same way as alcohol impairment.
RC Chapter 3780 is new and could be changed by the Ohio legislature, either now or in the future. Employers should continue to monitor changes and reassess policies when appropriate. The employment and labor law team at Meyers Roman is available to assist with drafting and enforcing all of your employment policies as well as teaching you all of the newest slang terms for marijuana.