As you may have seen, on November 7, 2023, Ohio passed "Issue 2," making Ohio the 24th state to legalize recreational marijuana. Issue 2 created "Chapter 3780" in the Ohio Revised Code, which permits adults (21 and over) to possess up to 2.5 ounces of pot and grow up to 6 plants per person (or 12 plants per household).
At first glance, this doesn't seem to change much for employers. The new "Chapter 3780" includes a section called § 3780.35, which states that "nothing in this chapter" (meaning Chapter 3780) (1) requires an employer to permit or accommodate an employee's marijuana use, or (2) prohibits an employer from firing or refusing to hire an employee because of marijuana use. Under "Chapter 3780," then, it seems that employers are free to handle marijuana the same as before: they fire employees for using, conduct drug testing to screen for it, and even launch intrusive investigations into employees' potential marijuana usage, like this:
While marijuana may or may not be a "memory loss drug," don't forget: marijuana is often used to treat medical conditions and disabilities. And remember: Ohio has long required that employers accommodate employees with disabilities under state law. More specifically, "Chapter 4112" of the Ohio Revised Code requires employers accommodate disabilities. So, while Ohio's new recreational marijuana law says that "nothing in this Chapter" (meaning Chapter 3780) requires an employer to accommodate marijuana use, the new law doesn't say anything about whether Chapter 4112 requires accommodating an employee's marijuana use if he or she is disabled.
If you like it even more complicated, it gets better! As you may recall, in 2016, Ohio legalized "medical marijuana." Then, in 2021, the Ohio legislature added a section to the "medical marijuana" law (also known as "Chapter 3796") which stated that it was not a violation of Chapter 4112 to fire, refuse to hire, or refuse to accommodate an employee due to the use of "medical marijuana." So, the law is clear on "medical marijuana" – an employer does not have to accommodate that. But since that law was written in 2021, it didn't say anything about an employee's use of "recreational marijuana."
So, what if an employee is using marijuana and, as an accommodation under Ohio disability law, he or she wants a relaxation of the drug-free workplace policy? First, generally speaking, employees would have to ask for this accommodation before the employer made the decision to fire or not hire them. If they test positive on the test, get fired, and then ask for accommodation, it is too late. Second, if the marijuana being used was recommended by a physician (and is thus "medical marijuana"), the employee has no extra rights to accommodation. But bizarrely, if the marijuana was bought at a non-medical dispensary, is "recreational marijuana," and is being used to treat a physical or mental impairment, then the gap in the new law leaves an argument (perhaps just a small one) that the employer may actually need to accommodate it. That would be the right time (or even earlier) to discuss the situation with a lawyer.
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