Q&A: How does Ohio's new cannabis law impact employees with drug-use policies?

Tuesday's official rollout of recreational cannabis in Ohio was highly anticipated, with customers continuing to flock to dispensaries for their favorite weed products.

But just because the purchase and use of marijuana is now legal in Ohio doesn't mean your employer will be as 420 friendly.

We turned to employment attorney Matthew Miller-Novak with Barron Peck Bennie & Schlemme for answers to your top job-related questions. Here's what we found out.

The state of Ohio has legalized recreational marijuana for use and purchase. Does that mean the state law protects you in the workplace?

"No. Employers are still, for the most part, allowed to have drug testing policies. Unfortunately, just because you know marijuana is legal, that doesn't mean necessarily that your workplace cannot test you for that and have a no drug policy at this point in time."

What do employed Ohioans interested in partaking in recreational cannabis use need to know?

"Well, first thing you have to ask is, 'Does my employer have a no-drug policy? and are they testing for it?' And if the answer is no, well then obviously there's probably not a problem with you partaking outside of work.

"The big issue everybody still needs to remember is worker's compensation. If you have a workplace injury and you're intoxicated or using a controlled substance at the time, there's a rebuttable presumption that that substance caused your injury. So you don't want to wake and bake before you go to [work], because if you get injured, you could actually not have workplace coverage.

"And you have to know that even if you use [recreational marijuana], if it's in your system when you have an injury, you still might be in a circumstance where you have to prove you weren't high at work— i.e. you just had a really good time last night or earlier in the week, and that's why it's in your system, as opposed to taking a gummy on the way to work."

Would you say this law has changed anything when it comes to workplace policies? Do you expect Ohio businesses to retool policies?

"Obviously I think it signals a paradigm shift. I think it's really hard for employers to say 'We're not going to allow you to do something in your personal life that's completely 100% legal,' right? Knowing that [businesses] are going to maybe lose qualified employees who enjoy smoking marijuana or using gummies or whatever the case may be, if I'm a really qualified employee and I'm attractive and I can choose between two companies, and I want one that appreciates my right to private decisions, I'm not going to choose your company if you have a policy I don't like."

Do you expect companies to administer more drug tests with a larger swath of the population now legally able to purchase marijuana?

"I expect to see less ... there's a paradigm shift here, right? Society is starting to accept the fact that people use marijuana recreationally. Decriminalization of marijuana has [seen] a huge swing over the last decade, and now the legalization in most states is starting to occur. It's just really hard, I think, to want to intrude in most people's personal lives, unless you have a really strong need to test people for drug use, and especially marijuana."

What are some frequently asked questions you get as an employment attorney when it comes to weed and the workplace?

"I think largely, [the law] doesn't really change much. I think it changes a societal perception. I think it changes what most employers are going to want to do in fields where no-drug policies aren't necessary. It doesn't really change things in terms of the termination analysis, no-tolerance drug policies or worker's compensation.

"The reality is, know what your employer's policies are. If your employer has a no-drug policy, then talk to an attorney before you just assume anything. If your employer does not have a no-drug policy, well, I guess go ahead and enjoy, partake as you will, but always still know that regardless of policy, if you are under the influence of work, or if you have it in your system and there's a workplace injury, it can still become quite the issue."

The state of Ohio updated its drug-free workplace policy in December 2023 following the passing of Issue 2.

HR 39 Drug Free Workplace Policy by webeditors on Scribd

According to the policy, state employees over the age of 21 can use recreational weed off the clock — that is, if they're not already subject to random drug testing.

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