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Ohio Legalizes Recreational Marijuana; What’s Next for Ohio Employers?

Client Alert

On November 7, 2023, Ohio passed Issue 2, legalizing recreational marijuana for adults 21 years of age and older. The law will take effect on December 7, 2023, although it is expected that we will be well into 2024 before Ohio recreational dispensaries open to the public. In the interim, employers will need to make some decisions and revise and/or put policies into place regarding marijuana use by employees. 

Under the statutory requirements for Issue 2, the following was specifically enumerated: 

  1. Employers are not required to permit or accommodate an employee’s use of marijuana, either during work hours or outside of work time.
  2. Employers may still refuse to hire, fire, discipline, or otherwise take an adverse employment action against an employee because of the employee’s use or possession of marijuana, either during work hours or outside of work time.
  3. Employers may still establish and enforce a drug testing policy, drug-free workplace policy, and/or a zero-tolerance policy for marijuana.
  4. Employers may still utilize the Ohio Workers’ Compensation rebate/discount program by participating in the drug-free workplace program. 

Importantly, if an employee is discharged for use or possession of marijuana in violation of a written drug-free workplace or similar policy, the employee will be deemed to have been terminated “with cause” for purposes of unemployment benefits, likely resulting in the denial of the same. 

Based on the rights available under this new statute, employers in Ohio have a few decisions that they will need to make, some of which are as follows: 

  1. Will they continue to test for marijuana during established drug testing?
  2. Will they prohibit the use of marijuana by employees during work hours?
  3. Will they prohibit the use of marijuana by employees outside work hours?
  4. Will they continue to participate in optional, state programs for drug-free workplaces to receive discounts on Workers’ Compensation premiums? 

In addition, if an employer is considered a federal contractor, it may also have requirements to implement a drug-free workplace, with drug testing. Such program is still likely to include testing for marijuana. Although it is expected that marijuana may be removed as a Schedule I drug within the next 12 months, this has not yet occurred. Therefore, an employer’s status as a federal contractor may still require testing and discipline for marijuana use, despite the presence of the new Ohio legalization. Employers with questions regarding their status as a federal contractor and the requirements to create a drug-free workplace should speak with their employment attorney as soon as possible to ensure compliance once the statute takes effect on December 7th. 

If an employer decides to move forward with the decision to not hire or to discipline/terminate in the event of a positive marijuana test, the employer needs to reduce this policy to writing to ensure everyone has advanced notice. Otherwise, the employer risks being liable for increased unemployment taxes as the termination will be deemed a “without cause” termination for purposes of unemployment benefits. 

If you have any additional questions regarding medical marijuana, the legalization of recreational marijuana, or the policy implementations for your workforce, please contact Bryan Meek, Partner and Co-Chair of BMD’s Employment and Labor Law Group at or (330) 253-5586.

Chemical Dependency Professionals Board Rule Changes: Part 2

New rule changes for Certification of Chemical Dependency Counselor Assistants (CDCA)

Board of Pharmacy Rule Changes

Board of Pharmacy made changes to rules effective on March 4, 2024

Counselor, Social Workers, and Marriage and Family Therapist (CSWMFT) Board Rule Changes

The Counselor, Social Workers, and Marriage and Family Therapist (CSWMFT) Board has proposed changes to the Ohio Administrative Code rules discussed below. The rules are scheduled for a public hearing on April 23, 2024, and public comments are due by this date. Please reach out to BMD Member Daphne Kackloudis for help preparing comments on these rules or for additional information.

Latest Batch of Ohio Chemical Dependency Professionals Board Rules: What Providers Should Know

The Ohio Chemical Dependency Professionals Board recently released several new rules and proposed amendments to existing rules over the past few months. A hearing for the new rules was held on February 16, 2024, but the Board has not yet finalized them.

Now in Effect: DOL Final Rule on Classification of Independent Contractors

Effective March 11, 2024, the U.S. Department of Labor (DOL) has adopted a new standard for the classification of employees versus independent contractors — a much anticipated update since the DOL issued its Final Rule on January 9, 2024, as previously discussed by BMD.  In brief, the Fair Labor Standards Act (FLSA) creates significant protections for workers related to minimum wage, overtime pay, and record-keeping requirements. That said, such protection only exists for employees. This can incentivize entities to classify workers as independent contractors; however, misclassification is risky and can be costly.