Drug testing

Possession Of A Medical Marijuana Card Alone Does Not Prove Marijuana Use, Appeals Court Holds

By Kathryn J. Russo,  Jackson Lewis PC, a Council of Industry Associate Member

The Ninth Circuit Court of Appeals refused to dismiss a medical marijuana-using applicant’s disability discrimination claim because he did not state that he actually used marijuana at the time of his interview — even though he provided a copy of his medical marijuana card – and was not subjected to a drug test. Kamakeeaina v. Armstrong Produce, Ltd., 2019 U.S. Dist. LEXIS 50863 (9th Cir. March 22, 2019).

The plaintiff applied for a job as a Receiver/Forklift Operator with Armstrong Produce but was not hired. He alleged that he suffered from post-traumatic stress disorder and depression. After he received a conditional offer of employment, he was advised that he was required to pass an on-site drug test. He disclosed to the Human Resources Director that he was registered under Hawaii’s Medical Cannabis Program and presented a copy of his medical marijuana certification card. The H.R. Director stated that if he tested positive on the drug test, the employment offer would be withdrawn. Plaintiff allegedly stated that he understood that the job offer would be “taken off the table” if he failed the drug test. Subsequently, the job offer was withdrawn even though the drug test was not conducted.

Plaintiff asserted claims of age discrimination and disability discrimination, including the denial of a reasonable accommodation, and the employer moved to dismiss the complaint.

The employer argued that the disability discrimination claim should be dismissed because of Plaintiff’s use of marijuana. The Court denied the motion to dismiss on this basis, given that Plaintiff did not fail a drug test and did not admit to marijuana use. The employer believed that Plaintiff’s acknowledgment that the job offer would be “taken off the table” if he tested positive, constituted an admission that he would test positive on the drug test. But the parties disputed the implications of Plaintiff’s additional statement during the interview that he “wanted to be straight-up from the beginning and if I were to get the job, it’ll be a way easier transition for everyone involved.” The Court concluded that this statement indicated that Plaintiff did ­not think he would fail the drug test. Moreover, no drug test was conducted. There was no evidence, therefore, that Plaintiff actually had used marijuana.

The Court dismissed the failure to accommodate claim because it was not clear what accommodation was sought by Plaintiff. However, the Court gave Plaintiff leave to replead this claim.

The lesson for employers is this: although it may seem reasonable to assume that an applicant who possesses a medical marijuana card actually uses marijuana, the adverse employment action should be based on something more, such as a positive drug test result or an admission of drug use (assuming, of course, that applicable state law does not prohibit discrimination against medical marijuana users).

 

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HR Network Meeting Recap: Drug Testing

The legalization of medical marijuana and the increasing rise in opioid abuse has made drug testing a hot topic for human resource professionals. The Council of Industry HR Network met on March 27th for presentations by Kathryn Russo, Jackson Lewis PC, and Robyn Seidman and Jean Strella, RJS Solutions LLC, on both the legal aspect and the best practices for drug testing and dealing with substance abuse in the workplace.

Russo opened her presentation by discussing how even though marijuana is legal in several states for both medical and recreational use it is still illegal under the Federal Government. This means that if you are regulated by the U.S. Department of Transportation, it remains unacceptable for any safety‐sensitive employee subject to drug testing under the DOT’s drug testing regulations to use marijuana, whether for medical reasons or not.

While medical marijuana is connected to an employee’s disability, it is permissible for employers to prohibit the use, possession and being under the influence of it while at work. The difficult part is when it comes to drug testing or if an employee volunteers that they use medical marijuana off-duty. Because the drug stays in the body for such an extended period of time after use someone using medical marijuana will test positive for the drug even if they never use it at work.

Whatever is affecting employee performance on the job it is important to approach the situation with documented observations of behaviors and the resulting effects in the workplace.  This, as Seidman and Strella explained, is true whether it is recreational drug or alcohol use or prescription medication that is affecting an employee’s performance. When discussing this concern with the employee it is also important to not make accusations of drug or alcohol abuse as this could violate the Americans with Disabilities Act. Following up with support such as a referral to an employee assistance program is very important. The key points for this interaction are to be tactful, ensure confidentiality and to refrain from being judgmental.

There was also discussion of what drugs are best to test for and whether testing for marijuana is even useful in the current climate. It is important to remember to consult with your legal counsel whenever you have questions on topics such as this because each situation is unique and the legal landscape is constantly changing.

With over 30 attendees this is one of our largest network meetings and Council member Access: Supports for Living hosted and provided a delicious lunch.  They delivered a presentation on the many valuable programs they provide the community such as: Behavioral Health Services for Adults, Family & Children’s Services, Foster Care/Child Welfare Services.

Council members may find that Access: Business Solutions which offers custodial services, facilities management and contract manufacturing such as assembly work, to be of particular interest. Members looking to expand their workforce may also want to know more about their Supported Employment program that is helping people with disabilities prepare for, get, and keep meaningful employment in the community.

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