COLUMBUS, Ohio — Recreational marijuana sales in Ohio started in August — and with this major development comes a lot of questions. I break them down.
I’ve been doing a series of answering viewer and reader questions and concerns about weed. This story focuses on employment.
The last edition featured a dozen questions related to sales starting, including where you can smoke and buy.
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.
However, President Joe Biden is trying to reclassify the drug to make it a less serious crime. The Justice Department is moving to make it Schedule III, meaning low to moderate potential for substance dependency, according to the DEA. This would align cannabis with anabolic steroids, testosterone and ketamine.
Cleveland Heights Mayor Kahlil Seren is asking for the government to move faster.
"There are still hurdles that we need to get over in order to make [the marijuana] industry more efficient, more effective to help it thrive on the financial end," Seren told me on the first day of marijuana sales. "There are inefficiencies in this model that are the direct result of misguided federal regulation on cannabis."
Lessening the penalties related to the drug just makes sense, he said.
"[The feds] could make it so much easier both for the business owners and the clients and customers if they would just get off their a—— and do the right thing," the mayor continued. "The federal government needs to work really hard to catch up to us."
It is also possible that employers may decide to test for other substances but pass on marijuana, Hoffman said, noting a trend in recent years to exclude cannabis from drugs to fire for.
"It's perfectly within the employer's authority to set that policy," she said.
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.
"The agency might think that if you're dealing with youth or you're dealing with law enforcement, it's more important to do the drug testing because you're supposed to be a role model or you're enforcing these laws," Hoffman said.
Lawmakers, on the other hand, are never drug tested before they can obtain their position.
One user on X, formerly known as Twitter, asked me about this double standard. Weed-enthusiast state Rep. Jamie Callender (R-Concord) told me he agreed with the user. He protected marijuana policy from being restricted by lawmakers and used his leadership role on the rule-making committee to advance progress on cannabis sales.
"Since they are state employees, not federal employees, and it is not illegal in Ohio to consume marijuana, — I would be opposed to that being a chemical that's monitored in employees," Callender said.
He is fine with the staffers being tested in general — but only for illegal drugs, he said.
"I'm uncomfortable in the public sector testing for something that is otherwise legal and available," he said. "Unless we're testing for alcohol and tobacco, I have a problem testing for marijuana."
Lawmakers also shouldn't be above the law, the Republican added.
"The fact that there isn't a termination process for an elected official — for good reason — does create a bit of a differentiation, but I'm not a fan of dual standards," he said.
It would be much easier to just eliminate marijuana testing in general, he said.
"People change from agency to agency all the time and to change the standards based on which agency kind of seems arbitrary," he said. "It's important that we recognize that in Ohio THC and cannabis are not illegal."
Would his fellow lawmakers agree? Callender doesn't know.
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."
Best bet for keeping my job?
Read up on your company policies!
But when in doubt, pass instead of puff.
Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.
