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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 bmeek@bmdllc.com or (330) 253-5586.


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

The Ohio Chemical Dependency Professionals Board has introduced new rules and amendments, covering various aspects such as CDCA certificate requirements, expanded services for LCDCs and CDCAs, remote supervision, and reciprocity application requirements. Notable changes include revised criteria for obtaining a CDCA certification, expanded services for LCDCs and CDCAs, and updated ethical obligations for licensees and certificate holders, including non-discrimination, confidentiality, and anti-sexual harassment measures.

Governor Mike DeWine and The Ohio State University Introduce the SOAR Study on Ohio Mental Illness

On January 19, Ohio Gov. Mike DeWine and The Ohio State University announced a new research initiative, the State of Ohio Adversity and Resilience (“SOAR”) study, which will investigate all factors influencing Ohio’s mental illness and addiction epidemic.

CHANGING TIDES: Summary and Effects of Burnett et. al. v. National Ass’n of Realtors, et. al.

In April 2019, a class-action Complaint was filed in federal court for the Western District Court for Missouri arguing that the traditional payment agreements employed by many across the United States amounted to conspiracy resulting in the artificial increase in brokerage commissions. Plaintiffs, a class-action group comprised of sellers, argued that they paid excessive brokerage commissions upon the sale of their home as a result of the customary payment structure where Sellers agree to pay the full commission on the sale of their property, with Seller’s agent notating the portion of commission they are willing to pay to a Buyer’s agent at closing on the MLS or other similar system.

The Ohio Board of Pharmacy’s Latest Batch of Rules: What Providers Should Know

The Ohio Board of Pharmacy released several new rules and proposed amendments to existing rules over the past month that will significantly impact pharmacy operations. Topics range from updates to the Terminal Distributor of Dangerous Drugs license to mobile clinics to mandatory rest breaks for pharmacists of outpatient pharmacies. A summary of the proposed changes is below, along with instructions for commenting on the rules. Your BMD healthcare attorney can help write comment letters and submit the comments on your behalf as well.

Employee or Independent Contractor? New Guidance Issued by the Department of Labor

On January 9, 2024, the U.S. Department of Labor (DOL) issued its long-awaited final rule — effective March 11, 2024 — revising its prior interpretation of worker classifications under the federal Fair Labor Standards Act (FLSA). The new final rule rescinds the standard previously established in 2021, in turn, shifting the analysis of whether a worker is an employee (versus an independent contractor) of a business from a more streamlined “economic reality” test to a more complex “totality of the circumstances” standard.