On November 7, 2023, Ohioans voted to legalize recreational marijuana by passing Issue 2. That raises the issue of whether Ohio employers can still test their employees for use of marijuana. 

The answer is yes.  

As background, Ohio legalized medical marijuana usage in 2021. In 2023, Ohio voters passed Issue 2 to legalize recreational marijuana. However, under both Ohio’s medical marijuana law, and Ohio’s new legalized recreational marijuana voter initiative, employers still have the following rights:  

• Employers are still permitted to test their employees for the presence of cannabis (marijuana). 
• Nothing requires an employer to permit or accommodate an employee’s use, possession or distribution of cannabis; 
• Nothing prohibits an employer from refusing to hire, discharge, discipline or otherwise take an adverse employment action against an individual with respect to hire, tenure, terms, conditions or privileges of employment because of the individual’s use, possession or distribution of cannabis; 
• Nothing prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy or zero tolerance drug policy.

In other words, the passage of Ohio’s recreational marijuana laws does not prohibit an employer from testing its employees for the presence of marijuana, if it chooses to do so. 

As expressly provided in both the medical marijuana statute and the recreational marijuana voter initiative, employers retain the right to establish and enforce drug testing policies or zero tolerance drug policies.  

In the past number of years, some employers have decided not to test for the presence of marijuana due to shortages of available workers who can pass a drug test for marijuana. With the passage of Ohio’s recreational marijuana laws, employers might find it even more difficult to find employees who can pass a pre-employment drug test, random drug test or reasonable suspicion drug test for marijuana. 

Employers will have to decide for themselves what marijuana related drug testing policy fits their business best.

Martin Boetcher is a lawyer with Harrington, Hoppe and Mitchell, and practices in employment law. He can be reached at mboetcher@hhmlaw.com or at (330) 744-1111.