With the passage of Issue 2 on Nov. 7, Ohio became the 24th state to legalize recreational marijuana under state law (marijuana remains illegal under Federal law). Included in the state law are broad protections for employers when it comes to employee use, possession and distribution.
When will the new recreational marijuana law go into effect?
As of Dec. 7, 2023, Buckeyes 21 and older can possess up to 2.5 ounces of marijuana or 15 grams of marijuana extract. Marijuana will be available for purchase in licensed retail locations and Ohioans will be allowed to grow up to six plants for private homes with a single adult resident and up to 12 plants where at least two adults live. The law also subjects retail cannabis products to a 10% tax.
Passage of Issue 2 also creates a Division of Cannabis Control within the Department of Commerce, which is charged with oversight and control of the adult use cannabis industry. The division has nine months to create a regulatory framework and begin the issuance of recreational licenses.
The recreational marijuana statute is an initiated statute, which can be amended by the Ohio General Assembly at any time. The General Assembly has indicated an interest in amending specific aspects of the law regarding THC content, tax rate and the intended tax dollar use. Ohio Senate President Matt Huffman said, “I will advocate for reviewing it and repealing things or changing things that are in it.”
Although the law provides expanded protections for adults 21 years or older, it also provides broad protections to employers within the state. Under Section 3780.35, Rights of the Employer, employers may do the following:
- Not permit or accommodate an employee’s use, possession, or distribution of adult-use cannabis.
- Refuse to hire, discharge, discipline, or otherwise take adverse employment action against an individual based on their use, possession, or distribution of cannabis.
- Establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance drug policies. These policies may prohibit the use of cannabis, including during work hours or while under the influence of cannabis.
- Permit employers to subject employees to disciplinary action, up to and including termination of employment, who violate workplace policies.
The use of cannabis remains illegal under federal law as a Schedule 1 substance. Therefore, employers may be required to comply with federal regulations regarding drug testing and workplace safety.
Recreational and medical marijuana laws may differ from state to state in regards to employer and employee rights. It is recommended that an employer is aware of the state and local laws of any state in which they have employees.
For more information, please contact Jonithon LaCross, Adrian Snead or any member of Porter Wright’s Cannabis Practice Group or Labor & Employment Practice Group.