The Impact of Ohio’s Legalization of Recreational Marijuana on the BWC’s Drug-Free Safety Program

Reposted from the Labor & Employment Law Navigator Blog - Click Here to Subscribe

Frantz Ward’s Labor & Employment Group has previously written about the Ohio Bureau of Workers’ Compensation’s treatment of marijuana in its Drug-Free Safety Program (DFSP) following the legalization of medical marijuana in 2016. The legalization of cannabis for certain medical conditions has had no effect on the BWC’s position that a drug-free workplace meant a marijuana-free workplace.  What will change now after the passage of Issue 2 and the Act to Control and Regulate Adult Use Cannabis (codified in Ohio Revised Code Section 3780) goes into effect on December 7, 2023? In short, and until further notice, nothing – it’s business as usual for the BWC and business still means a marijuana-free workplace.

As a refresher, the BWC’s Drug-Free Safety Program “DFSP” (sometimes also referred to as the Drug-Free Workplace Program)offers Ohio employers premium discounts for fulfilling and incorporating certain requirements into their drug and alcohol policies. These requirements include formalizing their drug and alcohol policies in writing, providing education and training to employees and supervisors, and conducting specific types of testing for certain types of illegal substances.

For drug and alcohol testing, the DFSP requires that employers perform all of the following types of testing:

• Pre-employment / new hire
• Reasonable suspicion
• Post-accident
• Return-to-duty / Follow up
• Random (only for the advanced levels of participation in the DFSP)

The DFSP also requires testing for all of the following five (5) substances:

1. Cocaine
2. Marijuana
3. Opiates
4. Amphetamines
5. Phencyclidine (PCP/angel dust)

This substance list remains unchanged after Ohio’s recent legalization of recreational marijuana.

For employers already feeling the pressure to relax their drug-testing policies —particularly in the context of pre-employment / new hire testing —the legalization of recreational marijuana use in Ohio will not help employers grappling with continued hiring and retention challenges and the desire to maintain their premium discounts under the DFSP.  For many, cost-benefit analysis may weigh in favor of discontinuing testing for marijuana and against the (sometimes comparatively) modest savings achieved through current DFSP premium discounts.

Of course, legal and practical considerations and potential ramifications associated with drug and alcohol policy changes in the wake of new legislation extend beyond the issue of DFSP rebates, as our Labor & Employment Group have already discussed and will continue to monitor.