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11.10.23   |   Insights

Don’t Get Lost in the Weeds – Guidance for Ohio Employers as Recreational Marijuana is Legalized

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Ohioans voted to pass “Issue 2” this week, legalizing the purchase, possession, and cultivation of marijuana for recreational purposes by adults aged 21 and older. This makes Ohio the 24th state in the U.S. to legalize recreational marijuana.

Previously, Ohio law prohibited the possession and use of marijuana unless it was recommended by a physician for the treatment of certain medical conditions. After the implementation of Issue 2, marijuana will instead be regulated much like alcohol. The new law establishes the Division of Cannabis Control within the Ohio Department of Commerce, which will be responsible for overseeing the sale and manufacture of marijuana within the state.

When does Issue 2 take effect?

Issue 2 will go into effect 30 days after the passing of the ballot measure, which is December 7, 2023. However, the Ohio legislature could still make modifications to the law. Additionally, Issue 2 provides the Division of Cannabis Control with a nine-month period to establish and finalize rules for the manufacture and sale of marijuana and begin issuing licenses to marijuana sellers.

Immediately on December 7, 2023, it will be legal for Ohioans over the age of 21 to possess and grow marijuana in their own homes, but there will be no legal way to obtain it. Under Issue 2, it is still illegal to purchase marijuana from unlicensed sellers in the black market, and the Division of Cannabis Control is unlikely to issue any licenses until the nine-month rulemaking process is completed. While some Ohioans travel to Michigan to partake in its legal market, it is a federal offense to carry marijuana across state lines. As such, Issue 2 will not have any practical effect on how marijuana is currently handled in Ohio for approximately ten months to one year.

What are the rights of Ohio employers?

Many Ohio employers, particularly employers in safety-intensive industries, are likely concerned about how Issue 2 will impact the workplace. The current text of Issue 2 provides protections for employers and allows them to:

  • Prohibit employees from using, possessing, or distributing cannabis.
  • Establish or maintain their drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.
  • Make employment decisions, including hiring, discharge, discipline, and taking “adverse employment action” against employees who use or possess marijuana.
  • Consider an employee discharged for “just cause” if their employment is terminated due to cannabis use.

Within the next ten months, Ohio employers should monitor the status of Issue 2 for any potential changes and consider whether their current policy on marijuana is still right for their business. Some employers may wish to strike a balance between relaxing pre-employment drug testing due to the national labor shortage and protecting themselves from potential liability for accidents/injuries that may result from employee marijuana use. Others may wish to keep their strict drug-free policies as-is to ensure employee safety and productivity. Whatever your company’s particular goals are, the labor and employment attorneys at Critchfield, Critchfield, and Johnston would be happy to assist you with reviewing your policy.

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