When Might It Be Discriminatory to Fire a Medical Marijuana User?

By Eric B. Meyer

OK, let’s assume that I’m looking to fill another Blogprentice position.

All hires must then pass a background check and drug screen.

She’s killing it in the interview! She’s hired.

Then comes the drug test, which she fails due to the medicinal marijuana she tells me she’s taking because of her epilepsy. So, I rescind the offer.

A violation of the ADA?

But, let’s say that, before I rescind the offer, my conditional hire and I have a little chat about her epilepsy, from which I form an opinion about the impact it could have on her ability to perform the essential functions of the job. That is to say, I’m concerned.

So, between the drug test and the epilepsy, I rescind the offer.

Is that OK? Or might I have violated the Americans with Disabilities Act? Well, according to this recent federal court opinion (EEOC v. The Pines of Clarkson) , it’s a close enough call that a jury would have to decide:

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While defendant is no doubt correct that discharge for illegal drug use is a permissible non-discriminatory reason, plaintiffs have introduced evidence creating a genuine issue of material fact as to whether the reason articulated in defendant’s motion for summary judgment is pretext. Holden testified at her deposition that during her employment interview with Legault and Gepfrey, Gepfrey grilled her about her epilepsy and told her that she thought the position would be too stressful for her based on her medical condition. Notes from the EEOC’s investigation and interview of Gepfrey state that she questioned Holden about her epilepsy, including the nature and frequency of her seizures and how she controlled them. Those same interview notes state that Gepfrey’s recommendation after meeting with Holden was “[n]ot to hire her for medical issues said (seizures) and didn’t feel she could handle the stress.”

Zero tolerance vs reasonable accommodation

The federal court later implied that, if the employer had a zero-tolerance drug policy and simply rescinded the offer based on the failed drug test (without discussing the employee’s disability), the employer would have prevailed under the ADA. (Note: Some states with medical marijuana laws may have added protections for employees).

So, you can go the zero tolerance route under the ADA. Or, maybe consider a slightly more flexible drug policy with a carve-out for medicinal marijuana, provided that its use does not pose a safety threat in the workplace. (Or have no drug testing policy at all, unless your business is in a regulated industry).

Presumably, the marijuana would serve as a reasonable accommodation under the ADA for the employee who needs medicinal marijuana to treat a disability.

By the way, I was just kidding (not kidding) about the Blogprentice position.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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13 Comments on “When Might It Be Discriminatory to Fire a Medical Marijuana User?

  1. The federal government says that marijuana is more dangerous than cocaine and meth.
    The federal government says that marijuana has no medical uses.
    The federal government has patents on some of the medical uses of marijuana.

    Call your representative and ask why the federal government operates this way.

  2. If marijuana truly makes people bad employees, you could just wait until they become a bad employee and fire them.

    I can understand drug screenings for new hires and regulated industries…but how dumb is it when you have hiring managers wishing they could hire that person who failed a drug test?

  3. Well, not like the Fed Govt is not being consistent…..it refuses to enforce some laws on the books and steadfastly refuses to change others in face of science, common sense, and the will of the majority of the people. I mean, the fed Govt knows and does what is best for us all, right, since they know everything…..don’t think so, well then just ask them

  4. Take your drug testing and shove it , The employer discriminated against her because she had epilepsy , I have a Liver Transplant , I didn’t get hired as a truck driver , though I had perfect record on my class A , Knight trucking sent me home two days into physical , after wards they would not tell me why. I was disqualified … After five years of this shit trying to get a job ,, I landed 2 jobs quit one , laid off by another , I bought my own Rig and cashed in..

  5. Nobody should be fired for smoking marijuana off the job. Nobody should be under the influence of weed or alcohol on any job. Why is common sense out the window because certain people just cannot see and accept the fact that just because they don’t like it or do it doesn’t mean that should translate to someone actually losing their livelihood over what they do in their own private time. I,ve known people in management who smoke weed who have had to order employees to drug testing and fired them for the same thing they also do. I weighs heavy on them but the damn government forces this policy in a blackmailish way. Funny the thought that something like marijuana could push this country to polarize between basically freedom loving patriots who are good citizens and over controlling bureaucratic nanny types. It’s not about weed. It is about freedom with responsibility.

    1. Its a legitimate concern because many medical cannabis users take their medicine all day, or have it on them, which would fail the legal test. So it is an important question that is answered wrongly in the article.

      1. I would think if someone needs, and needs is the word here, to smoke all day, then only certain jobs, ie mopping floors, painting, you know what I mean, would be suitable. Your point is well taken. Each case would have to stand on its own merits.

  6. This will work itself out over time, but in the meantime their are a lot of people who can’t work without it. If you come in all screwed up and you screw up, you should be fired. But if you do a good job and show up for work every day, the use of pot should not be used against you. I know people who are straight and narrow and they are complete screw ups. Just fire the screw ups and keep the good ones despite what a test says.

  7. i feel its ok to drug test but if you wont hire some one because they use mj medicinally then you should not hire any takes any other dr. prescribed medication or any one that drinks a beer after work. i smoke mj because of diabetic neuropathy and sleep disorder caused by muscle spasms

  8. Um, the ADA is a federal law, just like the pot prohibition is. So to advise someone to ignore federal drug laws under the auspices of the ADA accommodation is completely wrong. An employer can refuse to hire any medical pot user he/she chooses without consequence.

  9. getting old already. Cannabis is safer than the nasty anti-depressant drugs given out like candy by your local drug pusher, the doctor…oh, and all the other dangerous drugs that the good ole doctor gives out.
    BUT DONT have mj in your system…no!! no!!
    OMG.

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