Court Stirs the Pot on Medical Marijuana and Drug Tests

Like almost half the states and the District of Columbia, Minnesota has now legalized marijuana to treat certain medical conditions.  With distribution set to begin this July, many Minnesota employers are wondering how this will affect policies regarding workplace use and possession of drugs.

A recent Michigan case warns employers that improper application of drug policies may violate the Americans with Disabilities Act (ADA).  In EEOC v. Pines of Clarkston, 2015 U.S. Dist. LEXIS 55926 (E.D. Mich. Apr. 29, 2015), an assisted living facility refused to employ a nursing administrator, Jamie Holden, after she tested positive for marijuana prescribed to treat epilepsy.  This raised the question: was  Holden rejected because of the positive drug test or for the disability that required marijuana for treatment?

Improper Questioning

After testing positive for marijuana on a pre-employment drug test, Holden divulged that she had epilepsy and was prescribed marijuana as part of her treatment.  One of the facility owners then questioned her about her epilepsy and suggested she may not be able to perform the duties of the position.  A few days later, Holden’s application was rejected.

The Equal Employment Opportunity Commission (EEOC) sued the company claiming that the positive drug test was a pretext for disability discrimination under the ADA.  The employer countered that Holden was let go for violating their zero-tolerance drug policy, not for having epilepsy.  When the company filed a motion for early dismissal, the judge declined.  He observed that while marijuana is still an illegal drug under federal law (regardless of what state laws say about legal use) and its use need not be permitted as a reasonable accommodation, using positive drug tests to screen out disabled job applicants is nevertheless a violation of the ADA and most state disability laws.

The company’s main problem in this case was their inability to get their story straight.  At various points, they presented different reasons for not retaining Holden—a zero-tolerance drug policy, her failure to disclose her medications during the interview process or a genuine concern she could not perform the duties of the job. As a result, the judge decided that a full trial was needed to flesh out the company’s reasons for their actions.  Therefore, unless the case is settled, a jury will get to scrutinize whether the company lawfully relied on the drug or merely used it as an excuse not to hire an applicant with a disability.

Bottom Line

The need to use medical marijuana is not itself a qualifying disability under the ADA.  However, using positive drug tests as a method designed to screen out disabled job applicants would violate the law.  In addition, merely relying on the illegality of the drug will not be useful in Minnesota and most other state discrimination laws because the drug is in fact legal if prescribed, and employers must then consider whether such use can be accommodated.  If this situation arises, get help from a skilled employment lawyer in order to ensure all state and federal laws are followed.