OHIO Issue 2 – What Happens if it Passes?
For Employers, passage of Issue 2 will not change anything on Day 1. Down the road, the impact remains to be seen. Ohio Issue 2, verbatim, states the following related to employers (emphasis added):
Section 3780.35. Rights of employer.
(A) Nothing in this chapter does any of the following:
- Requires an employer to permit or accommodate an employee’s use, possession, or distribution of adult-use cannabis otherwise in compliance with this chapter;
- Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s use, possession, or distribution of cannabis otherwise in compliance with this chapter;
- Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
- Interferes with any federal restrictions on employment, including the regulations adopted by the United States Department of Transportation in Title 49 of the Code of Federal Regulations, as amended;
- Permits an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment related to the individual’s use of cannabis; or
- Affects the authority of the administrator of workers’ compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program established in accordance with rules adopted by the administrator under Chapter 4123 of the Revised Code.
(B) 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 for purposes of division (D) of section 4141.29 of the Revised Code if the individual’s use of cannabis was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of cannabis.
What might come next?
Several issues are percolating through Washington. First is the August 2023 request of the US Department of Health and Human Services (HHS) to reclassify marijuana from a Schedule I controlled substance to a Schedule III controlled substance. This would recognize medical uses for cannabis generally and have impacts on state legal cannabis programs.
Second is the MORE Act, refiled September 22, 2023, which is designed to decriminalize marijuana federally, require resentencing and expungement of prior convictions, and address disparate social impacts on minority and poor communities.
Third is the SAFER Act or 2023, passed through the Senate Banking Committee on September 27, 2023. Like the MORE Act, SAFER will open the world of finance to the cannabis industry, and institutions will be able, but not required, to serve the industry. MORE and SAFER differ in the tax and social equity realms, but otherwise both move cannabis into a legal landscape.
Should this potential become a reality, employers will want to pay close attention to the status and updates related to employment and cannabis. Multi-state employers will have additional headaches as the industry evolves and states interpretations and laws differ. The federal stance is generally deferential to state laws and that means we will not see uniformity for a long time, if ever.
Employment practitioners expect that with federal recognition of medical uses for cannabis, and rescheduling or legalization at the federal level, challenges related to adverse actions and accommodation will come.