Medical and Recreational Cannabis (Marijuana) Use and Employment in Ohio – Prohibition, Discrimination, Termination
- My employer prohibits me from using cannabis, even though I have a prescription.
- I have legally purchased and used marijuana; it is legal in Ohio, but my employer now threatens to terminate my employment.
- My supervisor told me that I was going to be terminated if I used my prescribed cannabis/marijuana.
Many employees encounter one of these or similar issues related to the use of cannabis (marijuana) and their jobs. Some people wonder whether it is illegal for employers to prohibit employees from using prescribed or legally purchased cannabis. Since more states are moving towards marijuana legalization, you may want to know what employment law says about it. This article discusses current regulations on cannabis use by employees in Ohio.
Legislative Framework
At the federal level, cannabis is a prohibited drug under the Federal Controlled Substances Act. However, in 38 states, cannabis is legal for medical use, and in addition to that, 24 states (including Ohio), two territories, and D.C. have legalized small amounts of cannabis for adult recreational use.
Americans with Disabilities Act of 1990
My doctor prescribed me to take marijuana as a medication for my disability. Am I protected under the federal Americans with Disabilities Act ADA?
Unfortunately, the ADA does not protect against discrimination based on the use of marijuana, even if an employee uses it to treat symptoms of his/her disability. § 12114 of the ADA excludes from qualified individuals with disabilities, protected under the Act, those who engage in the illegal use of drugs. Although the ADA provides an explicit exception for prescription drug use under the supervision of a physician, federal law still prohibits the use, possession, and distribution of marijuana, even for medical purposes. See Eccleston v. City of Waterbury, 2021 U.S. Dist. LEXIS 52835 (D. Conn. 2021).
Similarly, there is no other federal law that would protect an employee from adverse employment action based on the fact of his or her marijuana use.
State Law for Marijuana Use in Employment
State law may protect you from discrimination based on cannabis use, but it depends on the jurisdiction and provisions of the specific law. This protection from discrimination may apply only to the use of medical cannabis or to both medical and recreational.
For example, Arizona Medical Marijuana Act was enacted by Arizona voters by ballot initiative. Among other things, it includes an anti-discrimination provision that prohibits employers from discriminating against registered qualifying patients’ positive drug tests for marijuana components. See Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 774 (D. Ariz. 2019). Therefore, it is illegal for employers in Arizona to discriminate (i.e., to take adverse employment action, to terminate, etc.) employees because they use medical cannabis.
In Ohio, there is no such protection under Ohio’s Civil Rights Act, R.C. § 4112 et seq., and Ohio laws legalizing medical and recreational adult marijuana use. Thus, Ohio Revised Code § 3796.28(C) explicitly states that it is not a violation of Ohio’s Civil Rights Act, if an employer discharges, refuses to hire, or otherwise discriminates against a person because of that person’s use of medical marijuana if the person’s use of medical marijuana is in violation of the employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.
If you believe that you have been discriminated against for the use of prescribed or recreational marijuana, you should talk to an employment attorney to determine your further options. Contact the employment lawyers and Mansell Law LLC to learn more about your legal rights in the Ohio workplace.