ISSUE 2 FAQ for Employers

Background. Issue 2, Ohio’s ballot initiative to legalize the adult use of marijuana, passed on November 2023 with approximately 57% of voters approving the measure. As a recap, Ohioans voted to allow adults 21 and older to buy, possess, and grow marijuana; and to permit the state to impose a sales tax on products purchased at a licensed dispensary. The initiative also established the Division of Cannabis Control to establish and monitor operations of the law.

Q: “How does this change things with our employees and our alcohol/drug policy?”

A: To date, we’re not exactly sure. Initiated statues like Issue 2 take effect 30 days after they pass. However, because this is a state law versus an amendment to the state’s constitution, the legislature has the authority to modify and refine the law. Currently, legislative efforts to amend the law are at a standstill. The Senate passed its bill in 2023, but the House has not advanced this bill nor published one of their own.

As it stands now, the law supports employers’ efforts to maintain a drug-free workplace. For example:

• Employers do not have to allow employees to use, possess or distribute cannabis
• They are allowed to establish and enforce drug testing policy, drug-free workplace policy, or zero tolerance drug policy
• They are allowed to refuse to hire, discharge, discipline, and take “adverse employment action” against employees who use, possession or distribute cannabis
• An employee who is discharged from employment because of their use of cannabis shall be considered to have been discharged for “just cause … if the individuals’ use of cannabis was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or another formal program or policy regulating the use of cannabis.”

Q: “So what we should be doing NOW as we wait to see the final law? My employees are starting to ask questions.”

A: If you do not have a formal policy about the use of cannabis, including use for medical purposes, work with a drug-free workplace (DFWP) policy expert to develop one. As stated above, the original language of Issue 2 addresses employer protections for those who have a formal policy. Be sure to develop a policy that’s in line with your company culture and any impacting authorities (e.g., BWC’s Drug-Free Safety Program, Department of Transportation)

If you do have a formal drug alcohol policy, now’s the time to carefully review it – especially sections related to cannabis. Specifically, be sure your rules are very clear about the use, possession, and distribution of cannabis – including CBD and medical marijuana. And if you find language prohibiting being “under the influence” and/or “impaired” by cannabis, be sure those terms are clearly defined. If your policy isn’t as specific as you’d like, or if it has been more than two years since it was reviewed/updated, reach out to a DFWP policy expert for assistance.

We also recommend you issue a formal statement to your employees on your stance regarding the medical and personal use of marijuana. They may, for example, be misinformed about what Issue 2 means to them in regard to their job (i.e., they may think the law negates your policy and/or that it gives them new rights to use, possess or be under the influence at work). It is prudent to clear up that misconception, and they deserve to hear it directly and clearly from you.

Q: “Truthfully, now that marijuana is legal in Ohio, I’m considering backing off my DFWP program. This marijuana issue is becoming a barrier to finding and keeping employees.”

A: As organizations struggle to find ways to hire and keep qualified employees and statistics about marijuana use soar, employers are asking

• “Should we stop drug testing?
• “Can we just test for marijuana?”
• “Could we stop doing random testing?”

Understandable. However, it’s important to pause and explore the role a DFWP policy/program plays in the workplace and remember it has several moving parts; it’s not a “one-size-fits-all” endeavor. Each of the five components of a program – policy, employee education, supervisor training, drug testing and employee assistance – can be customized to meet an organization’s needs.

When it comes to changing or eliminating your program, you need to think through all your objectives – not just what you hope to accomplish by making changes, but why you initially started your program. After you’ve thought through all your objectives (e.g., finding employees, keeping your current employees, maintaining safety, keeping contracts, staying competitive), identify your priorities. Rank ordering them allows you to work toward a solution that balances all your objectives.

Q: So how do I find the right balance between safety/productivity and hiring/retention when it comes to testing?

A: For many employers, the pivotal issue with a drug-free workplace program comes down to testing. It is the accountability factor in a good program. Fortunately, many aspects of testing can be customized to balance your needs (e.g., how much do you proactively test and look for issues vs. only responding reactively vs. deciding not to test at all). Unless required by an authority to conduct specific types of tests, you are free to choose the types of tests your program conducts.

• WHEN you test
• HOW you test
• WHAT drugs you test for

As a leader in drug-free policies and operations, Working Partners® is here to provide assistance with your drug-free workplace policy/program and will continue to release updates as new details emerge.

For more information, call 614.337.8200 or email  Info@WorkingPartners.com.