January 24, 2020
by John Sauter, Doll, Jansen & Ford
Traditionally, if an employee tested positive for marijuana use, whether in a random drug test or a drug test based upon specific observations of impairment, the employee could be terminated without worry of legal repercussion to the employer.
But times are changing. Eleven states have legalized recreational marijuana and 33 states have legalized marijuana for medicinal use. The 2020 elections are sure to bring additional legalization. Recent changes in federal law have increased the availability of CBD products, which can now be easily purchased online or in retail stores. As a result, more people than ever are using marijuana or marijuana-derived products for medical or non-medical needs. A significant percentage of these people use marijuana to treat a disabling condition.
Ohio's new medical marijuana law, passed in 2016, contains a number of protections for employers who do not tolerate employees' marijuana use. Many other states that have legalized marijuana for medicinal use have similar laws.
Across the country, a number of individuals who were terminated from employment after using marijuana to treat debilitating medical conditions are challenging laws similar to Ohio's law on the basis that lawful, off-duty use of marijuana represents a reasonable accommodation that the employer must recognize, either under the ADA or a similar state disability statute.
Unionized employees have long asserted, with some success, that a positive test for marijuana use, unaccompanied by specific signs of on-the-job impairment, does not give an employer just cause to terminate a person's employment.
With rapidly changing public perception of lawful and unlawful marijuana use, this much is certain - employment law will continue to evolve to catch up to public approval of marijuana use.