March 22, 2019

The ADA’s Perception Protection: What You See is What You Get

An applicant is offered a safety-sensitive position as a forklift operator.  He is told that he will have to take a drug test as a part of the conditional offer. During an interview, he tells the HR Director that he has a medical marijuana (MM) card. The HR Director tells him if he tests positive, the offer will be withdrawn.  The applicant agrees to take the test. But before he does, the offer is withdrawn.  Did the employer violate the Americans with Disabilities Act?  A U.S. District Court ruled, “Yes.”  Why?

The employer defended the claim by asserting that there was a “reasonable inference” that the candidate was using an illegal drug when he disclosed that he had been issued the MM card. The court agreed that “an individual ‘currently engaging’ in the use of illegal drugs (such as marijuana) is not a qualified individual with a disability.” But,  at no time in the interview or at any other time did the candidate ever say that he used or was using marijuana.  The court found the employer’s inference was not reasonable.

Note 1: While the employer lost on the failure-to-hire claim, it won on the motion to dismiss the claim for failure to provide reasonable accommodation.  The court  noted that, “ordinarily, an employee or applicant must make an initial request for an accommodation.” There was no such request in the record.

Lessons Learned? Don’t assume! You know what they say about assuming (I won’t repeat it here. If you don’t know, ask a colleague).  Consistency is key. If the employer had tested the candidate under the same procedures it applies to all other forklift operator candidates and he had tested positive, this whole case may have been avoided.   When it doubt, managers should consult with the HR representative and HR might consult with legal counsel.