Recreational marijuana sales in Ohio started in August — and with this major development comes a lot of questions.
Could I get fired for smoking marijuana when I am off the clock?
Yes. Private companies can make whatever policies they want, regardless of whether a substance is legal.
“Just because your state makes it legal to use marijuana does not mean that employers don’t have the power to say ‘we don’t want our employees using it or coming to work after using it and we can fire them,’” Case Western Reserve University employment law professor Sharona Hoffman said.
Does this mean I still have to get drug tested at work?
Yes. But this could lead to some interesting situations.
CWRU law professor Jonathan Entin explained that there is a gray area in how well the drug tests can determine when you use marijuana.
“It’s not sufficiently sensitive to capture,” Entin said.
Research compiled by Healthline shows that cannabis can be detected:
- In blood for up to 12 hours unless you are a “chronic heavy user,” showing it has been detected for 30 days.
- In saliva for up to 24 hours unless you use it frequently, which could lead to detection at 72 hours.
- In urine for three to 30 days, depending on usage.
- In hair follicles for up to 90 days, no matter usage.
If I am fired for testing positive, can I sue?
You can always sue. That doesn’t mean you’ll win.
That being said, hair follicle drug testing can be unfair for a myriad of reasons, specifically for people of color, Hoffman explained. Some studies have shown that drugs tend to stay longer and can bind to hair with higher concentrations of melanin, she said.
“There have been lawsuits where African American workers have said ‘this is discriminatory because you’re much more likely to catch me if I’ve used a drug than somebody else,’” Hoffman said.
Why is the law still so strict?
The federal government, Hoffman explained.
“It’s still a controlled substance,” she said.
Right now, marijuana is a Schedule I drug, meaning it is classified as having a high potential for abuse and has no accepted medical use. Other drugs in this grouping are heroin, LSD and ecstasy.
I am a state employee. Do I still have to be tested?
As of right now, you should prepare to be. However, I checked with dozens of staffers who all report different policies within their Ohio agency.
Staffers of various levels inside both the Ohio House, Senate and executive offices report never being drug tested, nor having random checks. However, other state agencies, like Highway Patrol and Administrative Services, do have required drug tests, according to current and former employees.
Okay, so I’ll get fired for recreational use. What if I apply for a medical license? Can I smoke weed freely, then?
Not exactly.
Becoming a medical marijuana patient would be covered under the Americans With Disabilities Act, Hoffman said.
“But then you get into questions of, ‘is allowing this employee in this job to use marijuana a reasonable accommodation,’” she said.
An employee could file a lawsuit with the federal Equal Employment Opportunity Commission if they are fired, but there is a strong argument an employer could use.
“There’s a defense called the Direct Threat Defense, which is about whether the employee is creating a threat to the safety of themselves or others,” she said. “Those would be the arguments of it’s not safe to have the person operating this type of equipment when they have marijuana in their system.”
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