Best Ohio Disability Discrimination Lawyer Answer: Can I sue for wrongful termination if I was fired for using medical marijuana? Can my Ohio employer still drug test me? Does my employer have to accommodate my medical marijuana use?
In 2016, the Ohio legislature joined 33 other States in legalizing marijuana for medical use. Despite the fact that Ohio’s medical marijuana bill was signed into law in 2016, it was not until January 16, 2019, after years of discussing regulations, permits for growing, and distributing medical marijuana that four medical marijuana dispensaries in Ohio opened their doors for the first time. Finally, thousands of Ohio residents were flying high at the prospect of having an alternative treatment for many life altering conditions. However, during this time while the government was hashing out the details of who could use, prescribe, grow, and distribute medical marijuana one question seemed forgotten. What about those medical marijuana users whose employers may not allow the use of marijuana? To put it bluntly, their job can go up in smoke.
According to the Cincinnati Enquirer, almost 3.5 million Ohioans have conditions which qualify them for medicinal marijuana use. These conditions include; AIDS, cancer, epilepsy, chronic pain, PTSD, and many more. (For the full list of eligible medical conditions click here.) The conditions which medical marijuana is proscribed to treat all qualify as disabilities under the Americans with Disabilities Act (“ADA“).
Under the ADA, you and all employees are considered disabled and protected against disability discrimination if you meet any of these categories: (a) you have a physical or mental impairment that substantially limits your major life activities; (b) you have an impairment that may or may not substantially limit your major life activities, but your employer treats you as if you do; (c) you have an impairment that substantially limits major life activities only as a result of the attitudes of others toward your impairment; or (d) you do not have a disability that substantially limits your major life activities, but your employer treats you as if you do.
Normally, an employer has a legal duty to accommodate its disabled employees. As our employment law lawyers have blogged about before, under the ADA and Ohio Revised Code § 4112, an employer has a legal duty to accommodate its disabled employees, and it is unlawful for an employer to terminate, refuse to hire, or otherwise discriminate against an employee because of the employee’s disability. (See Can My Boss Fire Me Because He Thinks I’m Disabled?; My Job Is Discriminates Against Me Because I’m Disabled!). Further, employers are required to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.” (See Top Disability Discrimination Lawyer Reply: How Do I Get A Disability Accommodation At Work?; Top Disability Discrimination Lawyer Reply: Can I Bring A Service Dog To Work As A Disability Accommodation Under The ADA?; Disability Discrimination: Is Late Arrival A Reasonable ADA Accommodation?). Employers have even been required to accommodate recovering alcoholics and heroin addicts. (See Can I Be Denied A Job Because Of Prescribed Medications?, Is Drug And Alcohol Addiction Covered By The ADA?).
Unfortunately, the ADA does not permit the use of medical marijuana as a reasonable accommodation. This is because the ADA does not permit federally illegal drugs to be used as a reasonable accommodation, despite whatever effective treatment marijuana may offer disabled individuals. Because marijuana is still illegal under federal law, federal workplaces and contractors who work for the federal government, must remain a drug-free work environment. Thus, federal contractors who operate in Ohio do not have the option of accommodating medical marijuana users. Further, local Ohio employers in certain safety-sensitive fields like the Department of Transportation which are federally regulated cannot use medical marijuana as an accommodation for their disability. Thus, it is illegal for these employers to allow any accommodation involving medical marijuana.
State law offers no reefer relief either. Under Ohio law, employers are not required to offer, or provide accommodations for an employee’s or applicants use, possession, or distribution of medical marijuana even though the applicant or employee has been proscribed the medical marijuana by a physician to treat the employee’s disability. An Ohio employer can make the choice to accommodate its employees on, or off-duty medical marijuana use just like any other reasonable accommodation. While a local Ohio employer may choose to accommodate an employee’s, medical marijuana use, they may change their stance at any time and decide to terminate employees who were previously allowed to use medical marijuana to treat their disabilities.
Additionally, an employer can still require employees to undergo drug testing, and enforce drug-free workplace, and zero-tolerance policies. However, current drug tests cannot determine if an employee is actually impaired while at work. As a result, it is left to an employer’s judgment in determining if an employee is high at work, or just high on life. This is extremely troubling because many disabled employees already face stigma’s at work, even without extra scrutiny because their employer thinks they may be using medical marijuana to treat their disability. If you are disabled and notice that since medical marijuana has hit the shelves your boss is becoming more critical of your work, makes comments about your disability or the possibility that you are using medical marijuana, or seems to be hanging over your shoulder more than usual you need to call the right attorney to discuss your legal options.
Perhaps the worst part of the new Ohio law is that an employer has the option of refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against a medical marijuana user in regards to hiring, tenure, terms, conditions, and privileges of employment. Moreover, the new medical marijuana law does not allow a medical marijuana user to sue an employer for discriminating against them by refusing to hire, discharging, disciplining, discriminating, retaliating, or taking another adverse employment action against them for their marijuana use. Going even further, a person who is fired because of their use of medical marijuana is considered to have been terminated for “just cause” if the use of medical marijuana violates the employer’s anti-drug workplace policy, zero-tolerance rule, or other policy regarding employees use of medical marijuana. Unfortunately, this means that an employee terminated for using medical marijuana will not be eligible to get unemployment benefits after that individual’s termination.
While it is currently legal for an employer to terminate an employee for using medical marijuana, it is still unlawful for an employer to terminate an employee for the employees underlying disability. One of the concerns for experienced employment lawyers is that employers will attempt to use an employee’s use, or suspected use of medical marijuana as pretext to terminate disabled employees. We have previously blogged about what constitutes pretext (see Employment Discrimination Question: What Is Pretext?). To sum it up, pretext basically means “My boss lied about why I was fired.” In the case of medical marijuana an employer may say to a disabled individual who made a simple mistake or is acting out of the ordinary due to their disability “I bet you are high as a kite right now from that BS medical weed.” If an employer has a zero-tolerance workplace policy this employer may terminate a disabled employee under the suspicion that the disabled employee is using medical marijuana when the reality is the employee is just exhibiting symptoms of their disability, or non-marijuana related treatments. This would be a case of an employer using the pretext of suspected marijuana use as an excuse to discriminate against a disabled employee. If you are a disabled individual and your boss is harassing you about potential medical marijuana use, especially if you are not a medical marijuana user you need to call the right attorney and discuss if you are being discriminated against because of your disability.
However, keep in mind that an employer must apply their policy equally and cannot make the decision to allow or disallow medical marijuana use based on the employee’s race/color, religion, gender/sex, national origin, or age. For example, the boss cannot allow men with disabilities to use medical marijuana but fire Sally for using it to help treat her cancer. Such a decision would be gender discrimination. Likewise, the manager cannot allow white employees to use pot for chronic elbow or knee pain, but fire black employees for using medical marijuana for migraines because of the manager’s stereotypical and discriminatory belief about African Americans’ use and involvement with drugs. That would be race discrimination. Allowing the 20 something crowd of programmers to use medical marijuana but not allowing the 56-year-old janitor to use it for his arthritis would be age discrimination.
The legalization of marijuana, either for medicinal, or recreational purposes is creating new legal issues in many fields, and employment law is no exception. As Ohio law currently stands disabled individuals, who have found some relief for their conditions in medical marijuana are not protected from stigma and termination from close minded employers. The experienced employment discrimination attorneys at The Spitz Law Firm will continue to monitor the developing law surrounding medical marijuana and employment. In the future the hope is that law makers will recognize the value in medical marijuana’s use as a reasonable accommodation for multiple disabilities, and permit medical marijuana users the same leniency in accommodation that has been granted to employees who use other prescription medication.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled and believe that your employer has used suspected medical marijuana use as pretext to terminate, harass, or discriminate against you, or if you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at (216) 291-4744 in Cleveland. Call our Cincinnati attorneys at (513) 818-3688. Call our Columbus lawyers at (614) 335-4685. Call our Toledo lawyers at (419) 960-5926. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
This employment law website is an advertisement. The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if I was fired because my boss thinks I’m disabled” or “can my boss fired me for because I have cancer,” it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.
Links for pictures
If necessary, use: