Related Practices and Jurisdictions
A U.S. district court recently dismissed the lawsuit of a former employee who alleged disability discrimination after being fired for testing positive for marijuana in a pre-employment drug test. Espindola v. Wismettac Asian Foods, Inc., Case 2: 20-cv-03702 (CD Cal. April 28, 2021). The court ruled that an employer can make an offer of employment conditional on passing pre-hire drug screening, including a test for marijuana (recreational use of which has been legal in California since 2018). The court also found that in such circumstances there is no obligation for an employer to participate in the interactive process before dismissing an employee.
Here, the employer contacted the employee to arrange a preliminary drug screening, which the employer required of all potential employees after the job offer and before starting work. At the request of the employee, the test was postponed until the start of work. The agent then filled out a “personnel information sheet” stating that he was not “disabled,” signed a drug test informed consent form, and announced for the first time that he had “chronic back pain” and that marijuana was “prescribed” to his condition to treat.
It is important that the employee has not provided any information or documents to prove the nature of his condition or to explain limitations of his ability to carry out his job. The employee sent his medical marijuana card (which he received after learning of the upcoming drug test) to HR, took the required drug test, and tested positive for marijuana. His employment was then terminated based on the results of the drug test. In response, the employee filed a retaliation and discrimination lawsuit under the California Fair Employment and Housing Act (“FEHA”), wrongful termination, disability disregard, and non-compliance with the interactive process.
Judge John W. Holcomb granted the employer’s summary judgment and ruled that the worker was unable to demonstrate that he had a disability due to a lack of details or documentation provided to the employer. The court found that chronic back pain “without further ado” does not qualify as a disability under the FEHA and that “an employer does not have to accept the subjective opinion of an employee that he is disabled”. Separately, the employer identified a legitimate, non-discriminatory reason for the employee’s termination (i.e., failing the drug test) and was not required to participate in the interactive process until the employee passed the test.
Citing Pilkington Barnes Hind v. Superior Court, 66 Cal. App. 4th 28 (1998), the court also concluded that the employee could not rely on his own delay in filing the drug test to argue that he was no longer an applicant at the time of the test, which gave him greater privacy rights than Employees.
© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 217