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.

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By removing humans from part of the hiring process, employers often hope that they are also removing human prejudices and discrimination from their decision-making as well. That may not always be the case. Just this month, the Equal Employment Opportunity Commission (“EEOC”) issued guidance, warning that the use of artificial intelligence in hiring decisions “may disadvantage job applicants and employees with disabilities.”

As the EEOC explained, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against employees on the basis of disability. It also generally requires employers to provide reasonable accommodations to permit an applicant with a disability to apply for a job.

The EEOC warned that overreliance on technology during the hiring process may result in unintended violations of the ADA. For example, if an employer uses an automated software that screens out all applicants who have had significant gaps in their employment history, the software could be inadvertently excluding employees who stopped working to undergo treatment for a disability. Similarly, an employer that uses video interviewing software to analyze applicants’ speech patterns may unintentionally place applicants with speech impediments at a disadvantage.

Notably, the EEOC further warned that employers may be liable for discriminatory results caused by automated software, even if the software was designed, implemented, and administered by an outside vendor.

The EEOC therefore provided guidance to employers who intend to use automated software when making employment decisions. According to the EEOC, employers should:

• Determine whether their automated software was designed with individuals with disabilities in mind, and if an employee is expected to interface with the software, make the interface accessible to individuals with disabilities or present alternative interfacing formats for those with disabilities;
• Provide all applicants information about the automated software—including information about the traits/characteristics that the software assesses—and provide all applicants with instructions for requesting reasonable accommodations;
• Ensure that the automated software only screens/assesses candidates based on the abilities and qualifications that are truly necessary for the job.

The EEOC’s guidance regarding the ADA comes just a few months after it launched an initiative in October 2021 designed to “ensure that artificial intelligence and…and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws.” Employers can therefore expect that the EEOC will publish further guidance regarding artificial intelligence and other federal employment laws.

For more information about the EEOC’s guidance or to seek counsel from our employment law group, please reach out to request a consultation or call us at 216-696-1422.

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