[[{“value”:”
Over the past decade, the use of medical marijuana, or cannabis, to treat a variety of conditions, from post-traumatic stress disorder (PTSD) to epilepsy, has increased dramatically. The Centers for Disease Control and Prevention (CDC) noted that “as of February 2024, 47 states, the District of Columbia, and 3 territories [Guam, Puerto Rico, US Virgin Islands] allow for the use of cannabis for medical purposes. [In addition,] 38 states, the District of Columbia, and the 3 territories allow for the use of cannabis for medical purposes through comprehensive programs.”
In early March 2022, Ms Z was offered and accepted a position as a phlebotomist with a large medical testing company, which had over 50 locations and 1500 employees.
But there was a problem.
The official letter offering her the position explicitly stated that her employment was contingent upon the successful completion of a pre-employment physical, including a drug screening. The employer’s policy stated that any positive result for marijuana would disqualify the prospective employee from “safety-sensitive” positions – those that require a significant amount of direct patient contact.
Ms Z had a medical marijuana card prescribed by her physician to treat PTSD and generalized anxiety disorder (GAD). She was currently using medical marijuana to treat these conditions. The employer’s policy was silent as to the use of medical marijuana.
As part of the onboarding process, Ms Z was asked to report to an independent medical office to complete a drug screening. When Ms Z reported for the drug screening, she disclosed her PTSD and GAD diagnoses and her use of medical marijuana to treat these conditions.
A week later, with the results of the drug test still pending, Ms Z began her training for the phlebotomist position. However, on April 1, she was notified that her drug screen came back positive for marijuana, and thus, her medical clearance was on hold.
The head of human resources met with Ms Z and asked her to provide documentation about her medical marijuana card. In response, Ms Z submitted her card, receipts for her medical marijuana purchases, and a medical certification from her physician that identified her PTSD and GAD diagnoses. She also disclosed that she was prescribed medical marijuana and venlafaxine to treat these conditions.
In mid-April, Ms Z was notified that the employer was withdrawing its offer of the phlebotomist position based on her positive drug test. Instead, she was offered a laboratory assistant position, which had no direct patient contact but constituted a demotion with lower pay.
Ms Z sought the advice of an attorney, who advised her that she could file an Americans with Disabilities Act (ADA) claim with the Equal Employment Opportunity Commission (EEOC). Ms Z and the attorney filed a lawsuit against the employer, alleging violations of the ADA, the state Human Relations Act, and the state Medical Marijuana Act. As a result of the ADA claim, the case went to federal court. The defendant employer immediately filed a motion, asking for a summary judgment from the court to dismiss the claims against it.
The ADA prohibits employers from discriminating against employees based on a disability. A plaintiff seeking recovery under the ADA must first establish discrimination. To do this, a plaintiff must show “(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of discrimination,” noted the court.
Once the plaintiff makes this showing, the court said, the burden then shifts to the employer to show legitimate, nondiscriminatory reasons for the adverse employment action.
Ms Z argued that the defendant discriminated against her on the basis of disability in violation of the ADA by demoting her “because of her actual and/or perceived disabilities as well as her status as an individual who is certified to use medical marijuana.”
The defendant employer countered by saying that Ms Z’s reassignment to another position was based on an internal workplace policy that defined the job of a phlebotomist as a “safety-sensitive” position. Thus, Ms Z was offered a position without the “safety-sensitive” designation, which would not preclude her use of medical marijuana.
Despite the increasing number of people registered as medical marijuana ‘patients,’ marijuana remains illegal under federal law, wrote the court in its decision. “Notwithstanding this federal prohibition, the pattern among the states trends toward an embrace of legalization. To be sure, this dynamic will continue to raise interesting questions of federalism and conflict preemption as state legislatures explore marijuana’s efficacy in medical treatment,” the court wrote.
However, the court concluded that district courts that have looked at this issue have all concluded that the use of medical marijuana does not qualify a person as ‘protected’ under the ADA. The court noted that under federal law, medical marijuana is an ‘illegal use of drugs’ for purposes of the ADA and that because the adverse employment action was based on Ms Z’s use of medical marijuana, she is not a qualified individual under the ADA.
The court declined to review Ms Z’s state claims but allowed her leave to refile them in state court should she desire.
There are several takeaways from this case. The first is that employers are free to establish internal policies governing employees, as long as those policies are not discriminatory. The second is that the use of medical marijuana in itself is not considered a disability under the ADA (the underlying condition that is being treated with medical marijuana may be considered a disability, but the court here noted that Ms Z never produced any evidence claiming this).
As the court noted, marijuana is still illegal under federal law, thus, use of it is considered use of an ‘illegal drug’ and will not qualify someone as a ‘person with a disability’ under the ADA.
It will be interesting to see if Ms Z refiles her claims under the state’s Human Relations Act and Medical Marijuana Act. In general, however, courts have sided with employers, so take this into account if you are considering a medical marijuana card.
“}]] This month’s case looks at whether being part of a state’s comprehensive medical marijuana program qualifies the user as a person under the federal Americans with Disabilities Act. Read More
