March 22, 2021
Positive for Pot – No Defense Under the ADA
An employee (firefighter) is put on a last chance agreement for off duty conduct. The agreement specified that the employee would be subject to mandatory random drug testing and could be subject to termination if he tested positive for “a controlled substance.” Nearly two years later, he tells some coworkers that he is thinking about applying to obtain a state certificate for authorized use of medical marijuana to help him with his Post Traumatic Stress Disorder (PTSD). Despite some coworkers telling him that was not a good idea and unbeknownst to them, the employee obtained the registration certificate.
Two months later, the employee is subject to a random test, tests positive for marijuana, and is placed on unpaid leave pending an investigation. After an investigatory hearing held by the HR Department (don’t ya love when HR is cited in a court case?!), the employee is fired. He sues alleging at least six separate federal and state law claims, including three under the ADA: (1) discrimination; (2) failure to accommodate; and (3) retaliation.
In this case, the judge recognized that, “state-authorized medical marijuana use is somewhat of an unsettled area of law.” At the end of it, the judge ruled in favor of the employer on all three ADA claims:
- No ADA Discrimination. Because marijuana is an illegal substance under federal law, “an individual who uses medical marijuana cannot state a prima facie case under the ADA for discrimination on the basis of medical marijuana use…even where a plaintiff can establish that the drug use is linked to an underlying disability recognized by the ADA and taken under the supervision of a physician.”
- No ADA Failure to Accommodate. The employee admits he never told anyone about his PTSD, only that he was thinking about applying to obtain a medical authorization to use medical marijuana. That alone, ruled the judge, was insufficient to trigger the employer’s obligation to enter into an interactive dialogue as required by the ADA.
- No ADA Retaliation. The employee never disclosed his PTSD diagnosis and he only “raised the possibility of obtaining a medical marijuana card.” Neither establishes that he was engaged in any legally protected activity under the ADA.
Lessons Learned: You cannot discriminate against what you don’t know. The employee’s manager did a good job of not asking, “Why” when the employee said he was thinking about applying for MM authorization. That lack of knowledge may saved the day on the failure to accommodate claim.
Review your substance use/abuse/testing and accommodation policies. If it prohibits the use of or being under the influence of illegal drugs, is that defined? If not, define it. Consider including under federal, state or local law.
NOTE: This case may not yet be over. The court declined to address the state law claims and dismissed them without prejudice. That means the employee may refile those claims in state court.