Court Issues Key Opinion in Disability Discrimination Claim Involving Employee’s Medical Marijuana Use

While California has legalized marijuana use, that leniency has not yet extended into the realm of employment law. Despite the fact that medical marijuana has been legal in California since 1996, employees can still be fired for using medical marijuana off-the-clock. However, this area of the law is quite nuanced, because the Americans with Disabilities Act (ADA) and similar California laws protect employees from being discriminated against because of their disability.

In some situations, an employer’s actions in terminating an employee based on a positive marijuana drug test may constitute disability discrimination, provided the employee can show the discrimination related to the underlying disability rather than the marijuana use.

While not in any way binding on a California court, in January 2021, a federal appellate court for the Eastern District of Pennsylvania issued an opinion in a disability discrimination case involving a plaintiff who used medical marijuana, Hudnell v. Thomas Jefferson Univ. Hospitals, Inc. The plaintiff worked at a hospital since 2016. In 2019, due to her severe back pain, the plaintiff requested an accommodation under the state’s disability laws. The plaintiff took qualified leave from July 2019 to September 2019. Before returning to work, the plaintiff sought a reasonable accommodation to work from home 50 percent of the time. The request was denied.

When she returned to work, her employer required she take a drug test. The plaintiff informed the nurse administering the test that she is prescribed medical marijuana, and THC would show up in her blood. The plaintiff showed the nurse an expired medical marijuana card, and the nurse took the plaintiff’s blood. The plaintiff’s doctor shortly thereafter recertified the plaintiff’s medical marijuana card; however, the hospital terminated the plaintiff. The plaintiff’s attempted to address the situation with her employer to no avail. The plaintiff then filed a disability discrimination lawsuit against the hospital.

Specifically, the plaintiff claimed that the hospital 1.) failed to accommodate her disability, and 2.) retaliated against her based on her request for a reasonable accommodation. The hospital filed a motion to dismiss, arguing that the plaintiff’s marijuana use was not a covered disability under that state’s laws.

The court rejected the defendant’s motion to dismiss on both grounds, allowing the plaintiff’s case to proceed towards trial. The court began with the plaintiff’s claim that her employer failed to accommodate her request for an accommodation. The court explained that, here, the plaintiff’s claim rested on her back pain, which was a valid disability, and not on her marijuana use. In other words, the hospital argued that the plaintiff’s claimed disability was her marijuana use, while the court looked past the plaintiff’s medical marijuana use to her underlying disability, which was a covered disability.

Moving on to the retaliation claim, the court again sided with the plaintiff. The court explained that the hospital again mischaracterized the plaintiff’s claims. According to the court, the plaintiff’s claim was based on the fact that the hospital denied her request for an accommodation, and then fired her for using medical marijuana. The plaintiff’s request for accommodation had nothing to do with marijuana, as she only requested that she be allowed to work some of the time from home. The court also noted that an employee does not need to prove they have an actual disability, only that they requested an accommodation in good-faith. Here, the court held that the plaintiff met her burden, and allowed the case to proceed.

Employment discrimination cases involving the use of medical marijuana are extremely complex. In part, this is because marijuana laws (and the general societal attitude towards marijuana) are quickly changing. While California law does not necessarily protect against termination for medical marijuana use as of this writing, it is quite possible this will change at some point in the near future.

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At the McCormack Law Firm, we represent workers across all industries in a variety of employment law disputes, including disability discrimination claims. To learn more, contact us at 415-925-5161. You can also connect with us through our online form.