Passing Issue 2 doesn’t come with protections for employees who use recreational marijuana

Passing Issue 2 does not give employees a free pass to go to work under the influence of marijuana. 

“Employers can still have a drug testing policy, a zero tolerance policy,” said ​​Michael Griffaton, an attorney at Vorys, Sater, Seymour and Pease LLP. “It doesn’t provide you any protections if you are an employee who uses recreational marijuana.”

Ballot Langauge

The ballot’s language makes it clear it does not require an employer to “accommodate an employee’s use, possession, or distribution of adult use cannabis.”

It also doesn’t prohibit an employer 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.” 

“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,” according to the ballot language.

Issue 2 would legalize and regulate the cultivation, manufacturing, testing and the sale of marijuana to Ohioans 21 and up. It would also create the Division of Cannabis Control within the Department of Commerce. 

Recent polling shows majority support for Issue 2 is expected to pass in the November election. A total of 54% of lawmakers surveyed in last week’s Gongwer-Werth Legislative Opinion Poll think Issue 2 will pass. The poll showed 63% of Democrats and 52% of Republicans believe Issue 2 will pass. The poll had 35 lawmaker respondents. 

A July Suffolk University/USA Today poll shows 59% of Ohio voters support Ohioans 21 and older buying and possessing marijuana. It showed 77% of Democrats, 63% of independents and 40% of Republicans support the issue. The Suffolk University/USA Today poll surveyed 500 registered Ohio voters and their margin of error is +/- 4.4 percentage points.

Ohio employees

Ohio does not protect employees from lawful off-duty conduct, Griffaton said. 

“Employees need to know that if you are using marijuana off-duty, whether it’s for medical or recreational purposes and you test positive for a drug test at work, then whatever discipline applies under the drug test policy can be applied,” he said. 

Ultimately, it is up to each employer to set their drug policy and communicate it to their employees.

“A lot of it depends on the employer’s business needs, their workforce and how it believes it can or should accommodate employees who use marijuana, either recreationally or medically,” Griffaton said. 

Some employers will continue to drug test, regardless of what happens with Issue 2.

Ohio employers who have a drug free workplace program established under the Ohio Bureau of Workers Compensation are required to drug test their employees, Griffaton said. 

Drug tests are required under federal law for some employers and Ohio employers with government contracts need to pay close attention to their drug policy since marijuana is illegal at the federal level, said Sharon DeLay, owner and president of the human-resources firm GO-HR.

“Even though the state of Ohio may say ultimately, recreational marijuana is legal, they may have government contracts in place …  that say, ‘We don’t care, you still have to test your employees and you still have to be a drug free workplace,” she said.

DeLay recommends employers think ahead of time about what to do when someone tests positive for marijuana and encourages employers to do reasonable suspicion training that goes over how to identify signs of impairment caused by different substances. 

“They need to make sure that they understand how to approach this entire issue equitably,” she said. “They need to make sure they make the same decision in terms of hiring decisions, otherwise, they do start to go down the path of discriminatory practices.”

When determining reasonable suspicion testing, employers can ask themselves if an employee was acting erratically, had glassy eyes, or smell like marijuana.

“Did they cause an accident or are they involved in an accident that in the absence of drugs may not have occurred?” Griffaton said. 

Marijuana also stays in the body longer than alcohol, meaning an employee could have THC in their system for days after using marijuana and test positive, but could no longer be under the influence of marijuana. Depending on an individual’s marijuana use, it may be detectable in one’s system for up to 30 days, according to American Addiction Centers.

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