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Southeast Ohio man’s story offers a cautionary tale about medical marijuana and jobs
By: David Forster
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ATHENS, Ohio (WOUB) — When Ohio legislators legalized marijuana for medical use, many people may have presumed it would be treated like other prescription drugs.
But that’s not the case, as Steven Burwell recently discovered when he applied for a job. His story offers a cautionary tale, especially as the state prepares to more than double the number of medical marijuana dispensaries, which will likely result in more people using the drug for treatment.
At the same time the state is making medical marijuana much more available, it has also taken steps to make sure people who use it have no legal recourse if they can’t get a job or lose their job as a result.
After years in the private sector doing work for global companies like Boeing and Lockheed-Martin, Burwell started thinking about returning home to southeast Ohio and moving into some kind of community focused work.
A heart attack in October sped up that process.
Burwell applied for a desk job with the Muskingum County auditor’s office, and after a second visit was offered the position late last month. He was sent home with a packet of new hire information. This included a notice that he would have to pass a drug test.
Burwell told the auditor he had a medical marijuana card. She explained to him that her office is a drug-free workplace and if he failed the drug test he might not be hired. He decided not to accept the job offer.
Had Burwell instead taken the job, the auditor would have been well within her rights to rescind the job offer or fire him later if he failed a drug test.
“Which is totally bizarre because we frequently have people on far more significant drugs, including opiates, who are permitted to keep working so long as they have a doctor’s prescription for it,” said Ed Forman, a Columbus attorney who specializes in employment law.
Ohio’s medical marijuana law is crystal clear about this: Employers can refuse to hire a prospective employee or fire an existing one for medical marijuana use.
A state-federal conflict plays out in Ohio
The law may be clear, but like Burwell, many Ohioans are probably not familiar with all of its details.
“Of course there would normally be the assumption this would be handled like any other prescription drug, in which your employer would test you but to the extent that you had a legitimate medical need for it, it wouldn’t be held against you,” Forman said. “Why would it be? It hasn’t been a problem for anything else, right? I mean it hasn’t been a problem for Oxycontin.”
In fact, Burwell would have been better off if his prescription had been for some other drug like Oxycontin. This is a much more powerful drug than marijuana. And it’s implicated in the opioid addiction epidemic that has led to tens of thousands of overdose deaths in Ohio and elsewhere.
But Oxycontin and other opioid derivatives routinely prescribed by doctors are not illegal under federal law. Marijuana is.
And this is the crux of the problem, according to Pete Friedmann, also an employment law attorney in Columbus.
“What makes medical marijuana unique is that although individual states have legalized it for medicinal or even recreational use, it’s still unlawful from a federal perspective,” he said.
Marijuana a Schedule 1 drug, a list that includes heroin and LSD. These are considered by the federal government to have no currently accepted medical use and a high potential for abuse.
Just because Oxycontin or other powerful drugs are legal under federal law doesn’t mean an employer cannot fire or refuse to hire someone with a prescription. But the person may have some legal protection.
If, for example, the prescription is for a chronic or disabling medical condition, an argument could be made that under the federal Americans With Disabilities Act, the employer has to make a reasonable accommodation for the employee.
If the job involves a lot of driving or working with dangerous machinery, there may be no reasonable accommodation. But for office jobs that involve sitting at a desk behind a computer most of the day, like the one Burwell had been offered, there’s a much stronger case for making an accommodation.
“I’m not running an excavator. I’m not directing traffic,” he said. “All I do is stare at numbers on a screen and make sure they look like they are supposed to, fix the ones that aren’t and display it for public consumption — and figure out how to do all this better so people can save some time and money.”
State lawmakers close a loophole
Because marijuana is illegal under federal law, the Americans With Disabilities Act doesn’t apply. But most states have their own laws against employment discrimination. And in some states that have legalized medical marijuana, employees have won lawsuits arguing that their use of the drug is protected under state antidiscrimination laws.
But in order to make a successful claim, the employee must have disclosed their marijuana use up front, not after they fail a drug test, said Jack Moran, an employment law attorney in Cleveland. And many people may be reluctant to share this with an employer, especially when applying for a job.
“Fear is the main issue getting between viable claims and actually pursuing them,” Moran said, “because the employees are afraid to report that they’re using the marijuana in the first place, so the employers have no idea that there’s even a disability to accommodate.”
Attorneys contacted for this story said they are unaware of any such lawsuits in Ohio in the six years since the medical marijuana law passed.
And now it’s too late. A few paragraphs tucked into a massive budget appropriations bill passed by the Legislature in September explicitly state that employees who use medical marijuana are not protected under Ohio’s antidiscrimination law.
“It’s really difficult to read this more recent amendment to the law as anything other than the Ohio General Assembly going way out its way to make sure it is exceedingly clear that employers do not have to accommodate someone who uses marijuana in any context whatsoever,” Moran said.
What this means is that medical marijuana users like Burwell are out of luck unless they want to get a prescription for something else.
“I’m just disappointed that this prevents the government from hiring ‘the best and the brightest’ and makes the community suffer for it,” Burwell said. “Brain drain is bad enough in this area already, and this just makes it worse.”