Last month, the Trump Administration directed the U.S. Department of Health and Human Services to begin the process of “rescheduling” marijuana as a “Schedule III” drug under the federal Controlled Substance Act (the “CSA”). While it may not appear obvious from a distance, this marks the beginning of a potentially major shift for employers and employees in how marijuana is treated in the workplace.
Marijuana Laws & State-Level Impacts
As readers may recall, we previously discussed how Ohio’s allowance of recreational marijuana use in 2023 might complicate how our state courts handle claims of disability discrimination under state law. The new order from the Executive Branch, however, found here, has larger national implications due to its interaction with the Americans with Disabilities Act (ADA), a federal law that prohibits discrimination against individuals with disabilities. These changes would thus apply not just in Ohio, but throughout the United States.
Drug Use Under the Americans with Disabilities Act
Under the federal Americans with Disabilities Act, employers are not allowed to discriminate on the basis of disability against a “qualified individual.” A “qualified individual” is, under that same law, defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.” There is a specific section of the ADA, however, that specifies that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the [employer] acts on the basis of such use.” In other words, regardless of an employee’s disability status, if the employee is using illegal drugs, the employer is allowed to fire the employee for such use, even if the illegal drug use is somehow associated with the employee’s disability.
Marijuana’s Current Status
Critically, the Americans with Disabilities Act defines “illegal use of drugs” as the use of drugs that is unlawful under the Controlled Substances Act. So, for example, even if an employee has a medical condition that generates chronic, severe pain, that employee cannot claim protection under the ADA for using heroin, because heroin is a “Schedule I” drug under the CSA. A Schedule I drug is considered to have a “high potential for abuse” and lacks “currently accepted medical use in treatment.” Although marijuana is quite different from heroin, both substances are classified the same under the CSA. For that reason, courts have long held that employees cannot claim protection under the ADA for marijuana use, even if the marijuana use is under the supervision of a physician and lawful under the employee’s state law.
What Schedule III Classification Could Change
Meanwhile, “Schedule III” drugs are substances that have a lower potential for abuse than the drugs in Schedules I and II and that have currently accepted medical uses in treatment. Therefore, the CSA recognizes that Schedule III drugs, while subject to regulation, are not per se illegal. Under such a regime, employees would be able to argue that their marijuana use is legal under state law, subject to a physician’s supervision, and permitted under the CSA, and therefore deserving of protection under the ADA.
The takeaway from all of this? If marijuana is rescheduled under the Controlled Substance Act, employers will need to revisit their workplace drug policies, particularly those addressing positive marijuana test results. Such a change could dramatically expand employees’ ability to seek medical exemptions under Drug Free Workplace policies. Employers with questions or concerns as the administration moves toward rescheduling should consult counsel to discuss potential impacts and next steps.
For more information or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.
