In 2023, Ohio became the 24th state to legalize marijuana following an overwhelming vote in favor of recreational use. The passage of Issue 2 allowed adults to possess small amounts of cannabis and even grow a limited number of plants at home.
But employers' authority to regulate employee drug use has not been overly affected by the change in state marijuana laws. The current regulations even let organizations restrict cannabis use among workers, no matter their rights outside the workplace.
Employer rights regarding cannabis are covered in Ohio Revised Code 3780.35 and 3796.28. Under the new recreational law, workers can still be fired or otherwise disciplined for using cannabis, and employers are not required to accommodate legal possession on the job.
“(The law) gives employers more choices – they can continue to test or they can decide to stop doing that, and it’s really up to them,” said Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University. “But I don’t think it’s made anything more onerous.”
Firing someone for marijuana use is considered “dismissal with cause” when it violates an established drug policy – workers let go under these circumstances generally can’t sue a company for wrongful termination, Hoffman said.
Yet, the ability to create and enforce substance abuse policies does not give employers a free pass to apply these rules unequally, noted Zuber Lawler attorney Jim Ickes, who has been guiding medical marijuana startups nationwide along the path of company formation, application and licensure for eight years.
For instance, an organization may test prospective employees for marijuana, provided the test does not discriminate based on race or gender. Someone feeling selectively targeted could have a viable harassment, discrimination, or wrongful termination claim, said Ickes.
“From a state law standpoint, we’re dealing with privacy issues that employers need to be cognizant of,” Ickes said. “With medical cannabis, use could correspond with a medical condition. That’s what I caution employers about – be mindful of employees’ privacy rights. If they’re terminated related to cannabis use, then we’ve got to be cautious that’s not perceived a termination related to a disability or medical condition.”
Be reasonable
While Wooster-headquartered precision parts maker Midway Swiss Turn does not have a specific cannabis protocol in place, CEO Jayme Rahz expects to have one in place in 2025.
Being a smaller enterprise that only hires one or two workers annually, Midway Swiss outlines its drug and alcohol policies in an employee handbook. In addition, the company follows recommendations from the Bureau of Workers’ Compensation, which offers guidelines for a drug-free workplace.
Meanwhile, the federal Occupational Safety and Health Administration supports “reasonable” drug-testing programs for potentially dangerous work environments. At Midway Swiss, the forklift is the sole piece of equipment that poses a safety hazard, while the parts-processing machines are enclosed, Rahz said.
Rahz is more concerned about developing strategies for employees under the influence of marijuana. Unlike alcohol, there is no reliable test to detect cannabis intoxication, she said.
“If someone is under the influence of alcohol, I have a recourse to take,” said Rahz. “You can remove them from work and have them take a test, and that’s a pretty definitive thing. You were at work, you violated our policy, and we have grounds to fire you. With cannabis, it’s a lot harder because there is not a test telling me if they’re high right now or they used something over the weekend, which in Ohio is legal to do.”
Rahz plans to consult her legal team next year about liability around drug testing and ensuring any policy in place is non-discriminatory.
“Right now, if we were to implement a drug testing policy, we would probably have to be zero tolerance,” Rahz said. “But as it stands, we just have a policy that prohibits use or being under the influence while on the clock. Having a medical card will make no difference.”
Changes in the offing
Marijuana remains a Schedule I substance under federal law, in the same category as heroin. The government defines Schedule I substances as drugs with no accepted medical uses. The plant’s current status – which may soon change due to its increasing acceptance as a medical treatment – means federally-regulated industries like transportation must continue to ban its use.
However, folding in state legalization is where the situation can get confusing, said Ickes.
“It introduces complexities for employers trying to balance their obligations under federal law with Ohio's legal framework,” he said. “For example, legal off-duty use may not be protected, but challenges arise when considering employee privacy and discrimination.”
Like alcohol or various mind-altering medications, cannabis will probably be subject to specific regulations for certain industries, added Ickes. The slow unraveling of prohibition could also lead to “gray areas” on punishment – in other words, should imbibers be fired immediately or face less harsh corrective action?
Ickes expects to be advising clients on these matters in the months and years ahead. For now, he recommends companies revise their policies to align with the legal status of marijuana in their respective states. Supervisor training on detecting cannabis impairment should be another key priority for organizational leaders, he said.
Along with monitoring ongoing legislative changes, Rahz with Midway Swiss will lean heavily on her legal counsel for the many questions that will inevitably arise.
“How will the (Bureau of Workers ‘Compensation) and drug-free workplace initiatives move forward?” said Rahz. “Cannabis is still illegal on a federal level, so what about company benefits such as health or life insurance? All of these issues will need to be resolved, and I just think it will take time and there will be a lot of changes.”
