Ohio Votes in Favor of Issue 2: Legalizing Recreational Marijuana

Ohio has taken a significant step forward in its cannabis legislation, with voters recently passing a statutory initiative to legalize the adult use and purchase of recreational marijuana.

This development catapults Ohio into the 24 states that have embraced such legislation as Issue 2, which was approved on November 7. This initiative now permits Ohioans to buy and possess up to 2.5 ounces of cannabis while also allowing for the cultivation of marijuana plants in private residences. As this new law is set to take effect just 30 days after passage, Ohio employers must understand its implications and be prepared for what lies ahead.

This is not Ohio's first foray into cannabis regulation. In 2016, the state had already taken a step towards legalization by permitting the use of medical marijuana, which required individuals to obtain a medical "marijuana card" prescribed by a licensed physician. However, these provisions were tailored to specific medical conditions. They came with safeguards for employers, allowing them to take employment actions if an employee's marijuana or cannabis use affected the workplace. Consequently, many Ohio employers had already established policies to address the use of medical marijuana by their workforce.

The legalization of recreational marijuana in Ohio, through Issue 2, poses challenges for workplace drug testing. Employers may need to revise their testing policies to address off-duty marijuana use while ensuring workplace safety. Striking this balance is crucial as marijuana testing can't precisely detect current impairment, making distinctions between on and off-duty use complex. Staying informed about legal developments and adjusting drug testing strategies is essential. 

Employers should proactively seek legal counsel to ensure precise guidance. The following bullet points provide a basic awareness of key considerations:"

• Employers have the discretion to decline permitting or accommodating an employee's use, possession, or distribution of adult-use cannabis within the workplace. They are not obliged to tolerate any impairment caused by the drug, even if it stems from lawful off-duty cannabis use.
• Employers are authorized to exercise their right to reject job applicants, terminate employment, implement disciplinary actions, or undertake adverse employment decisions based on an individual's utilization, possession, or distribution of cannabis within the workplace.
• Employers have the prerogative to create and enforce policies related to drug testing, maintaining a drug-free workplace, and establishing a zero-tolerance stance towards drug use.
• If an employer chooses to terminate an employee due to cannabis use contravening company policy, this termination will be regarded as justified on the grounds of cause.

With the passage of Issue 2, the landscape in Ohio is set to change significantly. It broadens the scope of employees (those aged 21 and above) who can legally use marijuana, potentially impacting workplace safety. Notably, other states that have legalized recreational marijuana have witnessed an increase in workplace accidents and injuries.

The post-accident marijuana positivity rate for urine drug tests in the broader U.S. workforce stood at 7.3%, marking a notable 9% uptick compared to the previous year's rate of 6.7%. This latest surge represents an ongoing trend of escalating post-accident marijuana positivity, consistently witnessed from 2012 to 2022. Over this decade, post-accident marijuana positivity has surged by a staggering 204.2%. However, it's worth noting that between 2002 and 2009, there was a contrasting decline in post-accident marijuana positivity within the workforce.[1]

In response to evolving marijuana legalization, employers should proactively adapt. This includes providing proper collector training for in-house drug and alcohol testing programs and service providers. Employers should start by reviewing and updating drug testing protocols and policies to align with state and federal regulations. They have several testing options, including pre-employment, post-accident, random, and reasonable suspicion testing. It's crucial to communicate clear policies that outline the prohibition of marijuana use in the workplace and specify the consequences for violations. These measures ensure a consistent and compliant work environment.

By taking these proactive measures, employers can navigate the changing landscape of marijuana legalization while maintaining workplace safety and policy adherence.