Recreational marijuana sales in Ohio began in August — and in honor of that milestone, we’ve put together a series of answers to readers’ questions and concerns about pot. This story focuses on questions about employment.
Yes. Private companies can create whatever policies they want, regardless of whether the substance is legal.
“Just because marijuana is legal in your state doesn’t mean employers don’t have the right to say, ‘We don’t want our employees using marijuana or coming to work after using marijuana, and we can fire them,’” said Sharona Hoffman, a professor of employment law at Case Western Reserve University.
Yes. But it can lead to engaging situations.
Law professor Jonathan Entin of CWRU explained that there is some confusion about the extent to which drug tests can determine whether someone is using marijuana.
“It’s not sensitive enough to capture it,” Entin said.
You can always sue. That doesn’t mean you’ll win.
That said, hair follicle drug tests can be unfair for a number of reasons, especially for people of color, Hoffman explained. Some studies have shown that drugs tend to linger longer and may bind to hairs with higher concentrations of melanin, she said.
“There have been cases where black employees have filed lawsuits saying it was discrimination because I was much more likely to be caught using drugs than someone else,” Hoffman said.
“The federal government,” Hoffman explained.
“It’s still a controlled substance,” she said.
Currently, marijuana is a Schedule I drug, meaning it is classified as having a high potential for abuse and no accepted medical employ. Other drugs in this group include heroin, LSD, and ecstasy.
But President Joe Biden is trying to reclassify the drug to make it a less solemn crime. The Justice Department is seeking to place it in Schedule III, which means the substance has a low to moderate potential for addiction, according to the DEA. That would put marijuana on par with anabolic steroids, testosterone and ketamine.
Cleveland Heights Mayor Kahlil Seren is calling on the government to act faster.
“There are still obstacles we must overcome to achieve success” [the marijuana] industry more competent, more effective, to aid it thrive financially,” Seren said on the first day of marijuana sales. “There are inefficiencies in this model that are a direct result of the misguided federal regulation of cannabis.”
In his opinion, easing drug-related penalties simply makes sense.
“[The feds] it could make things a lot easier for both business owners and customers if they would just get off their asses and do the right thing,” the mayor continued. “The federal government has to work really hard to catch up.”
Hoffman said it’s also possible employers will decide to test for other substances but not be penalized for marijuana, noting a trend in recent years to exclude marijuana from the list of exempt drugs.
“The employer has every right to establish such a policy,” she said.
I am a government employee. Do I still need to take the test?
For now, you should be prepared for this. However, we have tested this with dozens of employees who all report different policies in their Ohio agency.
Employees at various levels in the Ohio House, Senate and executive offices report they have never been drug tested or undergone random checks. But other state agencies, such as the Highway Patrol and Administrative Services, have required drug testing, according to current and former employees.
“The agency may believe that if you are dealing with youth or law enforcement officers, it is more important to perform drug testing because you are supposed to be a role model or enforce these laws,” Hoffman said.
Lawmakers, on the other hand, are never subjected to drug testing before they take office.
One of the users of X, formerly known as Twitter, asked us a question about this topic double standards. Marijuana enthusiast state Rep. Jamie Callender, R-Concord, said he agrees with the user. He has protected marijuana policy from restrictions by lawmakers and has used his leadership role on the rulemaking committee to advance marijuana sales.
“Because they are state employees, not federal, and it is not illegal to consume marijuana in Ohio, I would oppose it being a chemical that is monitored in employees,” Callender said.
He said he had no objection to testing employees in general, but only for illegal drugs.
“I don’t feel comfortable in the public sector testing something that’s legal and accessible,” he said. “If we’re not testing alcohol and tobacco, I have a problem testing marijuana.”
The Republican also added that lawmakers should not be above the law.
“The fact that there is no termination process for an elected official — and for good reason — does create a distinction, but I am not a proponent of double standards,” he said.
He believes it would be much easier to simply eliminate marijuana testing altogether.
“People keep changing agencies and changing standards depending on which agency is kind of arbitrary,” he said. “It’s important that we recognize that THC and cannabis are not illegal in Ohio.”
Will his fellow lawmakers agree? Callender doesn’t know.
Okay, so I’m going to get fired for recreational employ. What if I apply for a medical license? Will I then be free to smoke weed?
Not quite.
Hoffman said becoming a medical marijuana patient would fall under the Americans with Disabilities Act.
“But then questions arise about whether allowing this employee to use marijuana on the job is a reasonable accommodation,” she said.
An employee can file a lawsuit with the federal Equal Employment Opportunity Commission if they are fired, but an employer can make a mighty case.
“There is a defense called the imminent threat defense, which is whether the employee poses a threat to the safety of themselves or others,” she said. “Those would be arguments that it is not safe for a person to operate this type of equipment with marijuana in their system.”
What is the best way to keep your job?
Familiarize yourself with your company policy!
But if you have doubts, it’s better to let it go than to rush it.
