Recreational Marijuana Passed...Now What?!?

Ohio voters chose to legalize recreational marijuana, and our phones are ringing off the hook with questions!

• Employers want to know if they must remove it from their drug panel all together.

• Employees want to know if they can still be fired for failing a test.

For some the answer is simple. Marijuana is illegal at the federal level. If you are federally regulated, have government contracts (ie: COATS), or participate in Ohio Bureau of Workers Compensation’s drug free workplace programs you can’t just remove marijuana off the drug test.

For private employers the answer is a bit more complicated, but it is up to each employer, and not the State of Ohio, to set their drug policy and communicate it to their employees.

Ohio employers do not have to “accommodate an employee’s use, possession, or distribution of adult use cannabis.” Issue 2 does not give employees a free pass to go to work under the influence of marijuana. It doesn’t prohibit an employer from “refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual … because of that individual’s use, possession, or distribution of cannabis.” “An individual who is discharged from employment because of that individual’s use of cannabis shall be considered to have been discharged for just cause,” according to the ballot language.

A lot will depend on the employer’s business needs, their workforce, and how it believes it can or should accommodate employees who use marijuana, either recreationally or medically. Revisit your drug test policy, participate in reasonable suspicion training to identify signs of impairment caused by different substances, and develop a strategy that can reflect your company culture while still meeting all your recruitment and retention needs. Did you know that urine drug testing can provide a 30+ day look back period, but oral saliva provides a look back of only 5 to 48 hours? It’s time to discuss your pre-employment, reasonable suspicion, random, post- accident, and other testing needs.

Employees need to know if you are using marijuana off-duty and you test positive for a drug test at work, then whatever discipline applies under the drug test policy can be applied.

Employers need to approach this entire issue equitably, be consistent, and make sure they make the same decision every time, or they’ll start to go down a dreadful path of discriminatory practices.

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