Employment law: Should your employer still test for marijuana?

The state of Ohio, like many other states in recent years, is poised to legalize medical marijuana on Sept. 8. So, what does this mean for employment law?

If you are in the workforce, chances are you had to take – and pass – a drug test. It’s been standard practice in business settings for years, with companies being able to legally hire and fire employees for failing drug tests – many times for marijuana use.
And while you probably know that current employment law doesn’t preclude companies from firing or failing to hire someone who tests positive for drugs, including marijuana, with several states legalizing marijuana for health or recreational use, some companies are ending drug tests all together.

So, with this new law on the horizon for Ohioans, does employment law need to change? Should your employer still test for marijuana?
There are arguments on both sides of this employment law issue, with some saying that if it is legal to use marijuana, such tests are costly and unnecessary.

However, marijuana is still illegal under federal law. And some jobs, like federal jobs, law enforcement, education and professions where employees have to operate heavy machinery, are still doing drug tests, citing legal and safety issues.

Currently, under Ohio law, you can be fired or not hired if you fail a drug test. And if the company you work for (or want to work for) has a policy on drug testing, you can be tested at any time – and for several reasons, like having a safety issue or injury at work, if your employer suspects drug use at work or if you take time off work to go to rehabilitation for substance abuse.

Federal law doesn’t protect you either. There’s no provision in federal law – including the Americans with Disabilities Act (ADA) — that protects employees who are actively using drugs.

That means, under current Ohio employment law, you can still be tested for marijuana and fired – or not hired – if you test positive. Employers can – regardless of the legalization of marijuana – prohibit its use as a term of employment.

However, attitudes on marijuana use are changing. According to a Gallup survey, about 12 percent of Americans smoke pot and 45 percent have tried it. And about 60% of Americans think pot should be legal.

The question remains, though, what the tolerance for marijuana use should be in a workforce setting and whether the current employment law needs to change to adapt to the changing drug laws.

In Ohio, it’s a question that will likely have to be answered before the close of 2018.

Behal Law

Do you have questions about employment law or the medical marijuana law? Our legal experts can help. Contact us today.

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