Spitz Law Firm Employment Discrimination Attorneys Best Answer Questions About Medical Marijuana and Employee Drug Testing.
As medical marijuana becomes legal in more states (not Ohio yet), many questions involving the rights of medical marijuana users will need to be addressed. Are there any rights afforded to medical marijuana users under certain federal regulations, such as the Americans with Disabilities Act? If so, how will the rights of medical marijuana users be affected by mandatory drug testing for employees?
Under the Americans with Disabilities Act (“ADA”), an employer cannot take an adverse action against an employee on the basis of a disability. If an adverse action is taken, an employee must show: (1) he or she has a disability that is protected under the ADA, (2) the employer knew the defendant was protected, (3) the employer took an adverse action, and (4) the employee’s protected status because of the disability was what caused the employer to take the adverse action. If the employee can prove the factors above, the employer must then prove it did not take the adverse action due to a disability, rather there was a separate legitimate, nondiscriminatory reason for the action.
Many employees have to submit to mandatory drug testing as a condition for employment. Mandatory drug testing can raise ADA issues when prescription medications are involved. Some employers are concerned that prescription medications have a negative impact on the workforce. A few years ago, Dura Automotive Systems (“Dura”), a Michigan-based company required its workers to undergo a drug test which included testing for legal medications that were lawfully prescribed for those taking them. As a result of this drug test, some employees were suspended until they stopped taking their prescribed medications, and others were terminated if they were unable to perform their job functions without the medication. Also, in conducting these tests, Dura disclosed to the entire workforce those workers who tested positive. Workers filed a lawsuit. Dura settled the lawsuit, and the wronged employees received $750,000.
Employers worried about the impact of prescription medication on their workers will likely similarly worry about the impact of medical marijuana use in states where medical marijuana can be legally prescribed. Many questions will arise and require answers. For example, does firing an employee for failing a drug test due to medical marijuana constitute an adverse action in violation of the ADA? This question was recently addressed by a federal court in, Gaylus Bailey v. Real Time Staffing Services. In Bailey, Gaylus Bailey, an HIV positive employee was fired after a drug test revealed he tested positive for marijuana. Gaylus was lawfully prescribed medical marijuana to alleviate his HIV symptoms. He obtained a note from his physician stating that he “is prescribed a medication that may cause a positive drug screen.” He never specified to this employer that he had HIV, and they only knew him to have a “medical condition.” After his termination, Gaylus filed suit against his employer, alleging that he was wrongfully terminated for a “manifestation of a disability” – his false positive on his drug test.
The court held that the employer was not in violation of the ADA. The court stated Gaylus was not fired because of “conduct” resulting from a disability—he was fired for failing a drug test, something the court did not consider to be “conduct.” Further, the court held that the employer could not have discriminated against Gaylus because of his disability of HIV because the employer did not know Gaylus had HIV. Knowledge of a “medical condition” does not equate to knowledge of a “disability.”
Although Gaylus did not prevail in his case, we should not take this to mean that it will always be lawful for employers to terminate employees who fail a drug test when they test positive for lawfully prescribed marijuana. The outcome may have been different if Gaylus had made his employer aware that he suffered from a disability. However, please keep in mind that individuals with disabilities have a right to some privacy regarding their disability under the ADA. A covered employed shall not ask an employee if the employee is an individual with disability or inquire as to the nature and severity of a disability unless it is “job-related and consistent with business necessity.” Do not feel as though you are required to reveal unnecessary information about your disability in order to protect your employment in a situation such as Gaylus’.
As we can see, legalization of medical marijuana will further complicate the already problematic area of employee drug testing. These complications also bring additional questions, such as how much should an employee disclose about his or her disability to protect him or herself from wrongful termination. As the courts continue to address these questions, the employment attorneys at Spitz, The Employee’s Law Firm will be closely following the cases and developments.
If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disables employees’ rights under ADA and Ohio law.
The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, attorney Brian Spitz or any individual attorney.