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While outdoor cooking of shellfish has been legal for decades, Ohio voters are now adding to their palates a new herb. Recreational marijuana becomes legal in Ohio as of December 7, 2023. Medical marijuana has been authorized since 2016, allowing patients who have been diagnosed with certain qualifying conditions and who have recommendations from certified physicians to purchase and use medical marijuana. The difference between the two is that now Ohioans over age 21 won’t have to get a healthcare provider’s recommendation or a medical card to purchase plant or extract forms of marijuana.

What claims could an employee have if they are fired for marijuana use?

First, remember that Ohio follows the employment-at-will doctrine. either the employer or the employee can terminate the employment relationship at any time, for any reason, and without prior notice, as long as the reason is not illegal or in violation of an employment contract. Under the employment-at-will doctrine, an employer can terminate an employee’s job without providing a reason, as long as the termination does not violate any federal, state, or local laws. Likewise, employees are generally free to resign from their positions without having to provide a specific reason or advance notice.

Thus, for example, employers can fire employees for having untied shoes, being left-handed, or refusing to work a shift from 1 a.m. to 3 a.m. These are all very stupid reasons for firing an employee, but they are legal. To find a basis to sue for wrongful termination, employment law attorneys look for statutes the employer violates, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), or Family and Medical Leave Act (“FMLA”), for example. Thus, to find a claim for wrongful termination arising out of a failed drug test, an employee has to point a specific law that was violated.

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How is an employee protected when using legal marijuana?

There are no federal laws that protect employees from being fired or from being discriminated against in the hiring process for marijuana use, even for disability reasons.

In Ohio, the same bill that authorized medical marijuana stated that employers are not required to accommodate an employee’s medical marijuana usage and are permitted to establish a drug-free workplace policy, including establishing routine drug testing. But and this is a nice, big, but…if a drug-free policy is not established in the workplace, no adverse employment action can be taken against an employee for their use of medical marijuana. An employee should get to know their employer’s workplace drug policy.

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What if the employer does not fairly apply the drug-free policy?

Drug policies cannot be enforced in a discriminatory manner. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminatorily enforcing policies, procedures, or rules based on employees’ race/colorgendergender identitysexual orientationnational origin, and religion. Thus, an employer cannot select only Hispanic employees for drug tests or immediately fire Black employees for failed drug test while giving white employees warnings or other progressive discipline. Likewise, under the age discrimination provisions of the Age Discrimination in Employment Act of 1967 (“ADEA”), employers cannot permit the 20 something computer programmers to use medical marijuana but fire the 62-year-old secretary for testing positive of THC. Moreover, under the ADA, employers cannot fire only disabled employees that test positive.

What should an employee do if they were fired after failing a drug test?

If you were fired after testing positive on a drug test, it would be best to call the right attorney to schedule a free and confidential consultation regarding your specific situation and legal rights. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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This employment law website is an advertisement. The medical marijuana, HTC, CBD, wrongful termination, disability discrimination, ADA accommodation, and race discrimination materials in this blog are for informational purposes only and should not be viewed as giving you direct legal advice. 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, Brian Spitz, or any individual attorney.

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