Can I Be Fired for Using Marijuana with a Prescription?
July 21st, 2022
The short answer is: yes, you can be fired for using marijuana, even with a prescription. Since 2016, medical marijuana has been legal in Ohio with a valid prescription from a physician. However, even though it is not illegal to consume medical marijuana in Ohio, employers can still enforce drug-free workplace policies and prohibit employees from consuming medically prescribed marijuana.
Employers Can Prohibit the Use of Medical Marijuana in Ohio
The Ohio statute that legalized marijuana for medicinal use provides express protections for employers.
Employers are not required to permit or provide accommodations for employees who wish to use, possess, or distribute medical marijuana.
Employers can refuse to hire a person due to the person’s use, possession, or distribution of medical marijuana.
Employers are also permitted to establish drug-free workplace programs and can discharge an employee if the employee violates the employer’s drug-free workplace policy. Employers can also defend against workers’ compensation claims where the use of medical marijuana was a contributing factor in causing an injury.
Drug Tests and Medical Marijuana Cards
A medical marijuana card does not protect an employee from termination if the employee tests positive for THC. Many employers take the position that the workplace should be completely drug-free and will terminate an employee who tests positive for THC.
While some employers will allow employees to use marijuana and will not consider it grounds for termination, employers have the discretion to terminate a person’s employment if the employee tests positive for marijuana.
Employees are generally not required to inform their employer if they have a medical marijuana card. However, if a person is required to take a drug test to obtain or keep a job, they might wish to share this information with their employer so the employer knows that the marijuana was legally prescribed.
Nonetheless, the employer can still decide not to hire the person or use the positive test for THC as grounds for termination, as long as the grounds for termination do not violate other anti-discrimination laws.
Employers Must Take Care to Avoid Unlawfully Discriminating Against Employees Who Use Medical Marijuana
Employers are permitted to enforce drug-free workplace policies. However, they should be aware of how the use of medically prescribed marijuana might intersect with federal and state laws that prohibit discrimination against an employee with a disability. In certain circumstances, employers might be required to provide reasonable accommodations for such employees.
For example, if an employee has a disability and uses medically prescribed marijuana to treat that medical condition, the employer must make clear that any adverse action against the employee is based on the employee’s use of marijuana, and not the underlying disability that led to the use of the drug.
How to Handle Employees Who Use Marijuana
An employer can lawfully enforce policies prohibiting drug use as a condition of employment. Employers are also allowed to conduct random drug tests of employees.
Employers may also choose whether and how they wish to accommodate off-duty drug use. Employers can choose not to test employees for drug use, or only test employees who work in safety-sensitive positions. Examples of jobs for which an employer might wish to completely prohibit the use of marijuana include:
Heavy equipment operators
Child care providers
In addition, employers can and should ask employees to submit to a drug test after a workplace accident, or when there is a reasonable suspicion that the employee is under the influence of marijuana while at work.
Evidence that an employee is high at work may be grounds for discipline, up to and including termination of employment. The steps the employer will take will depend on their written policies and applicable state and federal laws.
Employers should also consider whether they wish to make exceptions to their substance use policies or to treat marijuana use the same way they accommodate other medications.
Regardless of the drug-use policy, employers can always prohibit employees from working while under the influence, regardless of whether the substance is legal or not. But to protect themselves, employers should ensure that their substance use policy directly addresses the use of medical marijuana both on and off duty.
Employers should also be aware of the increasing use of CBD products that contain less than .3% THC. These products are legal under both Ohio and federal law. However, a product could contain a high enough concentration of THC to result in a positive test, even if the employee was not under the influence. There is currently no way to determine whether the THC came from a hemp product or from marijuana.
Contact the Employment Lawyers at RKPT
Marijuana laws can be complicated and they are constantly changing. Employers and employees should remain aware of how workplace drug-use laws are evolving, both in Ohio and other states. If you have questions about how a workplace policy will address marijuana use, the employment lawyers at RKPT can help.
Contact us today or call (513) 721-3330 to schedule a confidential consultation to discuss your situation and how we can help.