CINCINNATI – Tuesday’s official launch of recreational cannabis in Ohio was highly anticipated, as customers continued to flock to dispensaries to purchase their favorite cannabis products.
But just because buying and consuming marijuana is now legal in Ohio doesn’t mean your employer is 420-friendly.
We turned to employment attorney Matthew Miller-Novak of Barron Peck Bennie & Schlemme to get answers to your top employment questions. Here’s what we found out.
The state of Ohio has legalized the use and purchase of marijuana for recreational use. Does that mean state law protects you in the workplace?
“No. For the most part, employers are still allowed to drug test. Unfortunately, just because you know marijuana is legal doesn’t necessarily mean your employer can’t test you for it and can’t drug test you at this time.”
What do working Ohio residents need to know if they want to use cannabis for recreational purposes?
“So, the first thing you need to ask is, ‘Does my employer have an anti-drug policy and do they drug test?’ And if the answer is no, then there’s probably no problem with you using drugs outside of work.
“The big issue that everyone still needs to keep in mind is workers’ compensation insurance. If you have a work-related accident and you’re drunk or taking a controlled substance at the time, there’s a rebuttable presumption that that substance caused your injury. So you don’t want to wake up and get drunk before you go to work because if you get injured, you may not have workers’ compensation coverage.
“And you need to know that even if you use marijuana (recreationally) and it’s in your system when you get injured, you can still be in a situation where you have to prove that 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, and not because you took a gummy bear on the way to work.”
Would you say this law has changed anything in terms of workplace policies? Do you expect Ohio companies to revise their policies?
“I think that obviously 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 100% legal,’ right? If I know that (companies) are potentially going to lose qualified employees who like to smoke marijuana or eat gummy bears or whatever, I’m not going to choose your company when I’m a really qualified employee and I’m attractive and I have a choice between two companies and I want one that recognizes my right to make private choices if you have a policy that I don’t like.”
Do you expect companies to do more drug testing now that a larger portion of the population can legally purchase marijuana?
“I expect less… there’s a paradigm shift going on here, right? Society is starting to accept the fact that people are using marijuana for recreational purposes. Decriminalization of marijuana has seen a huge turnaround in the last decade, and now legalization is starting to happen in most states. I think it’s just very hard to want to intrude into most people’s private lives unless you have a really strong need to test people for drug use, especially marijuana.”
As an employment lawyer, what questions do you frequently get asked when it comes to marijuana and the workplace?
“I think, by and large, (the law) doesn’t really change much. I think it changes societal perception. I think it changes what most employers want to do in areas where anti-drug policies aren’t necessary. It doesn’t really change anything in terms of termination analysis, anti-drug policies or workers’ compensation.
“The reality is that you should know your employer’s policies. If your employer has an anti-drug policy, talk to a lawyer before you just assume anything. If your employer doesn’t have an anti-drug policy, then go ahead and enjoy the drugs all you want, but always be aware that regardless of the policy, it can still become quite a problem if you are under the influence at work or if you have drugs in your system and an accident at work occurs.”
The State of Ohio updated its drug-free workplace policy in December 2023 following the passage of Issue 2.
HR 39 Drug-Free Workplace Policy by Web Editors on Scribd
According to the directive, government employees over the age of 21 are allowed to use marijuana for recreational purposes outside of work hours – provided they are not already subject to random drug testing.
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