I was recently terminated at work after being asked to do a drug test because of "reasonable suspicion." I tested positive (copy of drug test was NOT given to me) and was informed of the company zero tolerance policy. I have a documented disability that required a presciption medication and HR has known about this condition. I am assuming that the reasonable suspicion was because of my disability, but I also use medicinal marijuana (and have a valid presciption from my doctor). My thoughts are that this company is letting me go based on the positive marijuana results, but I feel there was discrimination because of my disability. Does this possibly sound like a wrongful termination case or possible discrimination case? Any ground for civil lawsuit to pursue a claim? I am also fighting for unemployment after being denied because of the results of this drug test. I know there have been legal cases won by unemployment claimaints who have a prescription for medical marijuana. Please any help in this case would be appreciated!
I would seek out a consultation with an employment attorney to go over the facts in person. As stated here, you have a difficult case because medical marijuana possession is still a violation of federal law and that might serve as a legitimate reason for your employer to fire you. However, you still may have a case for discrimination.
Some factors that might weigh in your favor if they are true are (1) if your employer knew before the drug test that you had a disability (did you give them a doctor's note? Did you advise them in writing you were using medical marijuana before the drug test for a disabling condition?); and (2) if they administered the drug test as a pretext for firing you for your disability.
If you did not tell your employer ahead of time then there would have been no (under the facts you give us) reason to know you had a disability. This would make their "reasonable suspicion" excuse for the test more legitimate since it could have only been based on their suspicion you were engaged in termination-worthy misconduct (smoking pot) and not based on your disability. The extent to which you informed your employer of your disability before the test will be key to your case.
On the other hand, if they knew before they tested you that you were disabled and that an easy way to get rid of you would be to test you for dope, and then fire you for that reason as the cover, you may have a stronger case.
The case could be complex and might have a lot of twists and turns. So you would need a competent employment law attorney to navigate a potential claim against your employer. I would say it is definitely worth your time to consult with a lawyer in person to get a realistic assessment of the case.
Good luck.
So far, courts that have considered this question have ruled against employees. Your legal right to use medical marijuana protects you from criminal prosecution, but not from employer drug testing programs. If you were taking a different legally prescribed drug for your condition, you would most likely be protected by the Americans with Disabilities Act (ADA). However, this protection hasn't been extended to medical marijuana.
The ADA prohibits discrimination against employees with disabilities. A disability is a physical or mental impairment that substantially limits a person's major life activities, including major bodily functions. There may be people with glaucoma who do not have a disability under the ADA, based on this definition. However, if your glaucoma substantially limits your ability to see (a major life activity), you are protected.
Employees with disabilities have a right to reasonable accommodation to allow them to do their jobs. This extends to the measures an employees uses to control and function with a disability. For example, an employer might have to lower a desktop to accommodate an employee's wheelchair. The same rule applies to drugs that are legally prescribed for a disability. The employer may have a legal duty to accommodate the employee's drug use, including the side effects that the drugs have on the employee, under the ADA. If, for example, an employee takes medication for depression that makes him or her drowsy in the morning, the employer may have to alter the employee's start time to accommodate that side effect.
But medical marijuana hasn't been treated this way, at least so far. Courts have held that a person's right to use marijuana for certain medical conditions doesn't extend to a right to have that use accommodated by an employer. Marijuana use remains illegal under federal law, and the ADA explicitly does not protect employees who use illegal drugs. This lack of consistency between federal and state laws has led to the unfortunate result that an employee can be fired just for following doctor's orders.
Neither federal nor state law prohibits employers from disciplining or terminating employees for marijuana use, even when the drug is used to treat a disability in accordance with California’s medical marijuana law.
If you were fired for testing positive for a lawfully administered prescription drug necessary to treat a disability, I would tell you, you have a case for disability discrimination. But that does not appear to be the case here. Even though medical marijuana is legal in California, it is still a federal crime and the courts have held that it is not unlawful for an employer to fire an employee who tests positive for marijuana. Until the federal government changes its position, it does not appear as though you will be able to successfully sue the employer .
Alice Jeanne BakerEmployment / Labor AttorneyRocklin, CACA licensed ·
No, you do not have a valid civil claim against your former employer. The Americans with Disabilities Act expressly excludes from its coverage a person who is discharged from employment because of illegal drug use. Marijuana use is a violation of federal law. It is illegal drug use. It does not matter that California chooses not to enforce the federal drug laws. It does not matter that your doctor gave you a prescription. When your employer fires you for flunking a drug test, your employer is acting within its legal rights.
As for your unemployment appeal, you should appeal and tell your story to a judge; your employer does not determine whether you are eligible for UI benefits, the EDD does and if they say no, a judge from the CUIAB will determine (at your appeal) if you were terminated for engaging in misconduct. You should focus on your conduct that triggered the drug test in the first place and bring all relevant documents with you to the hearing. Good luck to you.
