The use of medical marijuana requires a “marijuana card” certified or prescribed by a licensed physician. Medical marijuana in Ohio was implemented in 2016. Protections for employers remained in place, an employer has the right to take employment actions to the extent the medical marijuana or cannabis use impacted the workplace. So, in fact a zero tolerance policy was allowed but it is recommended to always discuss if an accommodation can be made.
Now in 2023, recreational marijuana becomes law. The new law (Issue 2) does also have employer protections. There is specific language to protect an employer’s right to discipline and discharge employees for cannabis use that impacts the workplace. So, the employer can maintain a drug free workplace and continue testing for marijuana and take action for a positive test.
However, it is recommended that prior to an immediate termination for a marijuana positive test, the employer should discuss among leadership the situation.
Ohio employers should be discussing their drug free policy on marijuana and incorporating decisions into the drug free workplace policy. Of course, there is an option to discontinue marijuana from the testing panel. Perhaps maybe removing marijuana from pre-employment testing but maintaining it for reasonable suspicion testing. The drug free policies should clearly lay out disciplinary actions which could occur due to a positive marijuana drug test. Is there termination of employment or last chance programs for employees who test positive and perhaps provide access to a substance abuse program.
HR and safety professionals along with managers and supervisors should be trained and have a clear understanding of the policies relating to cannabis use at the workplace, along with an understanding of testing protocols, and disciplinary policies. Applicants and employees are sure to have questions that will need to be answered.
Reasonable suspicion training for supervisors becomes even more important in States where marijuana is legal. There is not a situation where an employee is allowed to bring marijuana into the workplace, use marijuana in the workplace or be impaired from marijuana in the workplace.
Just to be clear, current Ohio law does not prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, drug testing, or zero-tolerance drug policy.