Starting today, Ohioans 21 and older can legally grow and use recreational marijuana. In November, a majority of voters—56.97%—approved Issue 2, making Ohio the 24th state to legalize cannabis.
Under the new law, adult Ohioans can possess up to two and a half ounces of marijuana in plant form or up to 15 grams in extract form. (Issue 2 defines “extract” as “a substance obtained by separating or concentrating cannabinoids and other compounds from any part of the adult use cannabis plant by physical or chemical means, intended to be refined for use as an ingredient in an adult use cannabis product or as a standalone adult use cannabis product.”)
Adult Ohioans can also grow up to six marijuana plants or up to 12 for households with two or more adults.
However, Bryan Meek, a partner specializing in labor law at the Akron law firm Brennan Manna Diamond, said the issue is more nuanced when it comes to employers and employees.
“Issue 2 was clear that it’s going to remain up to the employer as to whether they will continue to drug test for marijuana,” Meek said. “Even after Thursday, employees can be terminated for using marijuana. They can still be drug tested for use of marijuana. That’s not going to change, and I don’t think the legislature is going to change that either.”
Meek added that some employers may choose to modify their policy and forgo drug testing now that recreational marijuana is legal. Among his clients, he said it’s “about 50/50” in terms of whether or not they’ll continue drug testing. Industry plays a big part in that decision with sectors such as health care and manufacturing among those likely to keep drug screening.
What Akron companies are saying
In an emailed statement, Maureen Nagg, senior public relations strategist at Summa Health, said new hires undergo pre-employment drug and alcohol testing. Current employees can also undergo testing “if there is reasonable suspicion of an employee using, or being under the influence of a controlled substance or alcohol while at work.”
“Our current drug and alcohol policy remains in place and will be evaluated once the state of Ohio finalizes the law regarding the use of recreational marijuana,” Nagg said.
The same is true for Goodyear, another major area employer. In an email, Laura Duda, senior vice president and chief communications officer, said, “Ohio’s marijuana law does not change anything for us. Goodyear is and will continue to be a drug-free work environment everywhere we operate.”
All employment candidates are required to pass a pre-employment drug screen. The company also has a post-accident or reasonable suspicion policy for current associates.
“There are certain businesses out there … that are still going to be required to test for marijuana,” Meek said. “Businesses that fall under Department of Transportation regulations. Businesses that have federal contracts or grants that require a drug-free workplace. Because the use of cannabis remains unlawful at the federal level, those federal contracts can still be enforced to limit the use of marijuana in the workplace, and we continue to see that.”
Another group of businesses that will continue to drug test is those that participate in the Ohio Bureau of Workers Compensation Drug-Free Safety Program. According to the website, employers receive a rebate on their workers’ compensation premiums “for implementing a loss-prevention strategy addressing workplace use and misuse of alcohol and other drugs, especially illegal drugs.”
Potential changes for Issue 2 happening in Columbus
Currently, several legislators have introduced bills to modify the new law. The bills address three areas: home grow, THC levels and taxes.
“We don’t know to what extent any sort of legislation actually has a chance of being passed, what that may look like, or when that’s going to be introduced,” Meek said. “The Ohio House has indicated that they don’t really have much motivation to move this week, because they see most of the changes impacting the actual sale. And obviously, we’re not going to have legal sales until probably September, at the earliest, of next year.”
In August, the Department of Health and Human Services recommended declassifying marijuana from a Schedule I controlled substance to a Schedule III. The Drug Enforcement Agency defines Schedule I drugs as those with no currently accepted medical use and a high potential for abuse (i.e. heroin). Schedule III drugs have a moderate to low potential for physical and psychological dependence (i.e. Tylenol with codeine).
The decision to reclassify lies with the DEA. If the agency were to adopt it, Meek said it would likely bring it under possible protection as a reasonable accommodation under the Americans with Disabilities Act. “Meaning, employers would need to consider it as a possible accommodation for disability treatment to not run afoul of the federal ADA,” he explained.
That would cause a conflict under Ohio law, Meek said, because Issue 2 states employers do not have to accommodate medical marijuana use.
“The courts would need to decide whether the state law provision allowing employers to forgo accommodation under Ohio’s disability protections is legal in light of the federal reclassification,” he said. “However, a federal reclassification is unlikely to impact an employer’s ability to still prohibit recreational use by employees or applicants.”
