By Jon Hyman
Dec. 9, 2013
Bailey v. Real Time Staffing Servs. (6th Cir. 10/29/13) involves an employee fired for a positive random drug test for marijuana. Unknown to the employer, Bailey was HIV positive and taking prescribed medication which could result in a false positive for marijuana. The court sided with the employer in affirming the dismissal of Bailey’s Americans with Disabilities Act lawsuit:
Bailey cannot show pretext if Real Time had an honest belief that he used illegal drugs… It is not clear that there was an error in the drug test at all, and Real Time went through a reasoned process by consulting with its medical review officer. Real Time had to decide whether to credit Bailey’s story or to credit the medical review officer’s. Its decision to credit the medical review officer’s does not support an inference of discriminatory animus. Even if the positive result was in fact false, an employer’s reliance on an erroneous result does not create a claim under the ADA absent an independent showing that the real reason for the firing was a disability.
This case raises an interesting question. Medical marijuana is legal in 20 states plus in the District of Columbia. Can an employer fire an employee who tests positive for legally prescribed marijuana? The ADA does not cover employees who are currently under the influence of illegal drugs. If legally prescribed, however, marijuana is not illegal. Thus, its treatment under the ADA is akin to any legally prescribed medication.
Here are four general thoughts on the handling of any legally prescribed medication under the ADA, including marijuana:
Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.
Drug testing. Drug testing programs can include legally prescribed drugs. And employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.
Post-disclosure handling. After an employer learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.
Employers are wary about letting anyone work while under the influence of any drugs, legal or illegal. As explained above, however, the handling of employees taking legal prescription medications is highly fact sensitive and legally nuanced. Your best course of action is to consult with experienced employment counsel before implementing any policies or taking any action against employees that implicate these complex issues.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or email@example.com. You can also follow Hyman on Twitter at @jonhyman.
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