Labor & Employment Alert: Employers Still Retain Veto Power Over Marijuana Use at Work

By Stephen P. Bond on November 14, 2023

Last week’s election saw the passing of Issue 2, allowing for the recreational use of marijuana. The details of how that will work are subject to both the enactment of further laws by the Legislature and potential new regulations from the new regulatory agency to be established for this new concept. Yet, in theory, this law will take effect December 7.

A lot of employees were confused with the passage of the prior law, assuming that getting a medical certificate to allow them to use marijuana was like a cloak of immunity protecting them if they should be found with marijuana in their system while at work. They were sadly surprised to discover that, under the old law, employers remained free to conduct business as usual – i.e., the law still allowed employers to refuse to hire or to discharge employees based on their marijuana use, notwithstanding their having medical approval.

The point of this memo is to make it clear that the new law doesn’t change things. Employers remain free to take a tough stand on marijuana use, the same as before. There wasn’t a lot of publicity on this point during campaigning, and it could be understood that an average employee might think that they now have free reign to indulge.

Now, before the law goes into effect, might be an apt time to educate your staff before anyone makes a serious mistake. The new law does not change an employer’s right to insist on no marijuana use at work, or no marijuana in one’s system while at work. If that is your company’s position, you may want to share this table with employees so there are no surprises.

EXISTING MEDICAL MARIJUANA LAW

NEW “RECREATIONAL USE” MARIJUANA LAW

Section 3796.28 | Rights of employer.

(A) Nothing in this chapter does any of the following:

(1) Requires an employer to permit or accommodate an employee's use, possession, or distribution of medical marijuana;

(2) Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's use, possession, or distribution of medical marijuana;

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

(4) 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;

(5) Permits a person 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 a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;

(6) Affects the authority of the administrator of workers' compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program established in accordance with rules adopted by the administrator under Chapter 4123 of the Revised Code.

(B) A person who is discharged from employment because of that person's use of medical marijuana shall be considered to have been discharged for just cause for purposes of division (D) of section 4141.29 of the Revised Code if the person's use of medical marijuana was in violation of an employer's drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.

Section 3780.35 | Rights of employer.

(A) Nothing in this chapter does any of the following:

(1) Requires an employer to permit or accommodate an employee's use, possession, or distribution of adult use cannabis otherwise in compliance with this chapter;

(2) 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 otherwise in compliance with this chapter;

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

(5) 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

(B) An individual who is discharged from employment because of that individual's use of cannabis shall be considered to have been discharged for just cause for purposes of division (D) of section 4141.29 of the Revised Code if the individual's use of cannabis was in violation of an employer's drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of cannabis.

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