On December 7, 2023, a law legalizing the recreational use of marijuana in Ohio took effect. This new law permits adult consumers, without criminal penalty (under Ohio law) and within certain limitations, to:
- Purchase, use, possess, or transport marijuana and/or adult use extract;
- Home grow a limited number of marijuana plants for personal use;
- Possess, use, purchase, manufacture, sell, or transport paraphernalia used to grow or use marijuana or adult use extracts; and
- Assist other adult-use consumers or allow their property to be used for growing marijuana.
Under this law, adults are individuals who are at least 21 years old, and “adult use extracts” are any substance that is derived from marijuana. Also, the amount of marijuana that may be legally possessed, transported, or sold by an adult cannot exceed 2.5 ounces of marijuana or 15 grams of adult-use extract.
On the other hand, under Ohio’s law, adult-use consumers of marijuana or adult-use extracts may not:
- Operate a motor vehicle, boat, plane, or bike while under the influence of marijuana or an adult use extract or
- Smoke or, vape, or use any other combustible adult use marijuana product while in a motor vehicle, boat, plane, bike, scooter, or
- Smoke, vape or use any other combustible adult use marijuana product in public indoor places (per the Ohio Department of Commerce); or
- Transport legally purchased marijuana in other states into Ohio.
Also, as an aside, it is also unlawful for a parent or guardian to knowingly permit their minor child or minor invitee to consume marijuana or adult use extracts in their residence, other private property, car, or boat.
So, what does all this mean for Ohio’s employers?
First, just as with medical marijuana (which has been legal in Ohio since 2016), under this new law, employers may:
- Refuse to hire an individual because of that individual’s use, possession, or distribution of marijuana.
- Fire or discipline an employee because of that employee’s use, possession, or distribution of marijuana.
- Establish and enforce a pre-hire or post-hire drug testing policy;
- Establish and enforce a drug-free workplace policy or zero-tolerance drug policy in the workplace.
Also, an employee who has been fired from employment because of that employee’s use or possession of marijuana will be considered to have been discharged for just cause for purposes of determining that employee’s eligibility for unemployment benefits.
Second, it is essential to note that Ohio’s law has no impact on the enforcement of federal drug laws. So, the possession, use, or transportation of marijuana or extracts is still illegal under federal law, and violators are subject to arrest and criminal prosecution.
Other federal laws that still apply and are not affected by Ohio’s law are:
- The Drug-Free Workplace Act for employers with federal contracts in excess of $100,000:
- The drug and alcohol regulations issued by the Department of Transportation under Title 49 of the United States Code.
Moreover, the protections afforded to employees under the federal Americans with Disabilities Act (ADA) do not apply to employees who are currently engaged in the illegal use of drugs (including marijuana) and alcohol.
So, what should employers do?
First, an employer should review its employee policies to ensure that the acts that are specifically prohibited by Ohio’s marijuana law also clearly violate company policy. For example, the employer’s policies should specifically state that all employees (adults or minors) may not: (i) be under the influence of marijuana or extracts while on company property or when operating company vehicles, (ii) smoke, vape or use any other combustible marijuana product while on company property or when operating company vehicles and (iii) may not use company vehicles to transport marijuana products.
Second, an employer should decide whether it wants to be generally more tolerant or less tolerant of its employees’ private use of marijuana. The factors that an employer may consider when making this determination are:
- Characteristics of its workforce, including the level of education required, whether special skills are needed, and the propensities of the typical employee in the employer’s workforce to use alcohol and other intoxicants for relaxation.
- The availability of employees needed by the employer; a less tolerant approach to the personal use of marijuana will shrink the pool of available employees, while a more tolerant approach will increase the pool of potential employees.
The types of work being performed on behalf of the employer; for example, does the work require precision or exactness, is it
potentially dangerous (either to the employee while the work is being performed or to the consumers (if the work is not properly performed), or does the work involve secret processes or procedures.
- The types of equipment used or handled by the workforce; for example, is the equipment expensive and/or hard to replace or repair if damaged?
- The existing workplace culture and/or the attitude of the employer.
Third, depending on whether the employer wants to adopt a more or less tolerant position towards the private use of marijuana by its employees, it should review its current policies to ensure that they reflect the desired approach.
For example, regarding pre-hiring drug testing, with a less tolerant approach, a potential employee who tests positive for marijuana would not be hired on that basis. On the other hand, an employer with a more tolerant approach would not exclude a potential employee for that reason.
Regarding post-hiring drug testing, with a less tolerant approach, an employee who tests positive would be subject to discipline and/or discharge solely on that basis. On the other hand, under a more tolerant approach, an employee who tests positive would not be disciplined unless the employee was impaired.
This is where things can get tricky for the employer, who has adopted a more tolerant approach to the private use of marijuana by its employees. Because the active ingredient in marijuana (“Tetrahydrocannabinol” or “THC”) remains in the blood, urine, and hair longer than the effects of marijuana, it is possible that an employee can test positive for marijuana but not be impaired.
Faced with this situation, an employer can discharge an employee – consistent with the employment laws – so long as it has a reasonable basis for the job action. A reasonable basis for determining impairment may be established by observing the employee and documenting all factors contributing to the suspected impairment. Some signs of impairment may include:
- General physical appearance;
- Responses to questions, coherent or not;
- Eye examination, including pupil dilation and pupil convergence tests;
- Walk and turn tests;
- One leg test;
- Falling asleep or fainting;
- Tremors, slurred speech, or impaired coordination;
- Unusual smells on breath, body, or clothing;
- Balance tests;
- Heart rate, blood pressure, and body temperature;
- Dark room examination of pupil size;
- Muscle rigidity;
- Any other erratic or atypical behavior of a type that is consistent with drug use.
The determination of impairment may be made by supervisory personnel, by a supervisor specially trained in drug recognition, or by a certified drug recognition expert. The more thorough the examination and the more qualified the examiner, the more likely an employer will be able to show a good faith reason basis for determining impairment.
Once an employer decides what approach it wants to adopt towards the private use of marijuana by its employees, new policies should be created to further that approach, and all the other existing work policies should be reviewed to ensure consistency and fairness.
Unfortunately, with our changing society and workplace expectations, employers cannot afford to take a laissez-faire attitude. Sooner or later, issues created by these changes will intrude into the workplace, potentially creating liability for the unwary employer.
If you are interested in learning how employers can navigate this change in Ohio law, contact Doug DiPalma at 216-621-7860.