Next week, Ohioans will head to the polls to vote on Issue 2, which would legalize and regulate recreational marijuana for Ohioans over the age of 21 to include cultivation, sale, purchase, possession, use and home growth, in addition to other proposed regulation.
So will Issue 2 force employers to change how they make decisions regarding marijuana in Ohio workplaces? Arguably no. Consistent with Ohio’s existing Medical Marijuana Control Program, the ballot initiative language is clear. Employers would NOT:
- Be required to “permit or accommodate an employee’s use, possession, or distribution of adult use cannabis”, and
- Be prohibited from “refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual … because of that individual’s use, possession, or distribution of cannabis.”
In other words, under the proposed statute, employers could still prohibit employees from using or possessing cannabis while at work and/or on the employer’s premises. And employers could continue to refuse to hire, discipline, or discharge an employee if the employe tests positive for cannabis – even if the positive test was the result of lawful, off-duty use. Ohio employers subject to federal Department of Transportation requirements and parties to federal government contracts will also continue to be permitted to drug test employees pursuant to those federal requirements. And Ohio employers would also be able to maintain voluntary Drug-Free Safety Programs through the Ohio Bureau of Workers’ Compensation.
Employers in other states with legalized recreational marijuana use are sometimes significantly more restricted in what actions that they can and cannot take as the result of an employee’s positive drug test. In California and New York, for example, employers can generally only take action against employees if they have psychoactive cannabis metabolites in their system such that they are impaired at work. These standards are particularly onerous for employers because science and research have, to date, yielded few (if any) approved, available drug tests that are capable of detecting current cannabis impairment that would be analogous to BAC results that test for alcohol impairment. Further complicating the analysis in these other states is the different impact on impairment caused by the method of cannabis consumption. Fortunately for Ohio employers, no such requirements or standards would result from the passage of Issue 2. Employers could still refuse to hire, discipline, or discharge employees based on a positive drug test – regardless of current impairment.
If Issue 2 passes, however, employers should carefully consider whether pre-employment and other cannabis-related policies are still right for their business. Employers may continue to grapple with the balance between relaxing pre-employment drug testing due to the nationwide labor shortage and the increased risk for potential negligent hiring, retention, and/or supervision claims.
To put it bluntly, regardless of how Ohioans vote on November 7th
, employers should ensure their drug policies are consistent with state and federal law, communicate the policies to employees, and apply them consistently. If you have any questions about employer drug testing policies, please contact Katie McLaughlin or any member of Frantz Ward’s Labor & Employment Group.