What Does Ballot Issue 2 Mean for Employees and Employers?

On November 7, Ohio voters approved a ballot initiative making it legal for adults aged 21 and above to use marijuana recreationally. The new law went into effect on December 3, 2023.

Many people are wondering what effect this new law will have on the workplace.  The answer may be very little. 

This is because new law does not require that employers “permit or accommodate an employee’s use, possession, or distribution of adult use cannabis.”  The new law does not prohibit an employer from discharging or disciplining as the result of an individual’s use, possession, or distribution of cannabis.

Employers continue to be permitted to maintain and enforce drug testing policies, drug-free workplace policies, or zero-tolerance drug policies.  Under the new law, employers may still make employment decisions based on the results of a positive drug test.

For those seeking additional information, the relevant excerpt from the Initiative Petition is reproduced below:

An Act to Control and Regulate Adult Use Cannabis

SUMMARY

The Act would enact Chapter 3780 (“Chapter”) of the Ohio Revised Code regarding adult use cannabis control to authorize and regulate the cultivation, processing, sale, purchase, possession, home grow, and use of adult use cannabis by adults at least twenty-one years of age (“adult use consumers”).  Adult use cannabis, cannabis and marijuana are all defined under the Act to mean marihuana as defined in section 3719.01 of the Ohio Revised Code.

Among other things, the Act would:

Protect an employer’s authority to establish hiring and employment policies and practices related to the Act.  Specifically, nothing in the Act does any of the following related to an employer:

• Requires and employer to permit or accommodate an employee’s use, possession, or distribution of adult use cannabis;

• Prohibits an employer 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 cannabis;

• Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;

• Interferes with any federal restrictions on employment, including the regulations adopted by the United States Department of Transportation in Title 49 of the Code of Federal Regulations, as amended;

• Permits an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment related to the individual’s use of cannabis; or

• Affects the authority of the administrator of workers’ compensation to grant rebates or discounts on premium rates that participate in a drug-free workplace program.

An individual who is discharged from employment because of the individual’s use of cannabis shall be considered to have been discharged for just cause for purposes of unemployment benefits eligibility if the individual’s use of cannabis was in violation of an employer drug or related cannabis policy.  Proposed Section 3780.35.

If you have questions or concerns about this new development, contact Jill McQueen at 330-563-4174 or email jmcqueen@aghattorneys.com