This week, a Federal Court in Pennsylvania allowed a former employee whose employment has been terminated for testing positive for marijuana, to move forward with discrimination and retaliation claims.
The employee suffered from a spinal condition and had requested several accommodations, all of which were granted. The employee also appeared lethargic during a meeting at which he mentioned that he had eaten some kind of gummy and on another occasion told a story about eating a gummy that made him so high that “he sat on the toilet for hours.” The employee admitted to taking CBD gummies to ease the pain of his spinal condition, but denied ever using marijuana and agreed to be drug tested. The test came back showing small amounts of marijuana metabolites, which the employee attributed to the CBD gummies, but the employer terminated his employment anyway.
The individual sued, claiming disability discrimination, retaliation for requesting accommodations, interference with his rights under the Americans with Disabilities Act and similar state law, and violation of the Family and Medical Leave Act. The court granted partial summary judgment in the employer’s favor, but let stand the claims for discrimination on the basis of disability and retaliation, finding a reasonable jury could infer that the employer treated the employee unusually harshly after management noticed his disability worsening and after he began to miss work to attend full-day physical therapy sessions.
There was also evidence from which a reasonable jury could infer that the employer’s policies typically allow an employee who tests positive for marijuana to return to work under a last chance agreement, an opportunity that was not offered to the plaintiff here. For similar reasons, the court refused to dismiss the retaliation claims.
Employers should take note that blanket policies of terminating anyone who tests positive for marijuana may result in discrimination claims. Employers should review each situation, and any positive test, on a case-by-case basis and should ensure that discipline is administered evenly and in accordance with company policy.