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Jan 13, 2016

By Eric B. Meyer

I’ve blogged before about how grilling a medical marijuana user about her disability, just before firing the employee, could give rise to a viable disability-discrimination claim.

In other words, where the disability (as opposed to the medical marijuana use) motivates the employment action, that’s discrimination.

I’ve also blogged before that the Americans with Disabilities Act does not protect illegal drug use by employees. So, if the illegal drug use, and not the disability, motivates a company to fire an employee, that’s perfectly legal.

Applying a drug testing policy to all employees

Last week, a New Mexico federal court (in Garcia v. Tractor Supply Company) concluded that the same logic applies to disability discrimination claims brought under New Mexico state law.

That is, suppose an employee with a disability who uses medical marijuana (which is legal in New Mexico) is fired for testing positive for marijuana. Testing positive for marijuana is not because of the employee’s disability, nor could testing positive result from the disability. And, using marijuana is not a manifestation of a disability.

Instead, an employer is applying its drug testing rules to all employee regardless of the reason for marijuana use. Thus, in most instances, firing an employee because she tests positive for medical marijuana is OK.

But, let’s suppose that you operate a business in a state, such as Connecticut and Delaware, which has a medical marijuana law requiring that employers accommodate medical marijuana cardholders. Well, here’s a monkey wrench from the New Mexico decision: The court underscored that certain state medical marijuana laws may provide limited immunity that won’t conflict with the federal Controlled Substances Act.

You don’t have to condone illegal drug use

However, to require an employer to accommodate an employee’s illegal drug use would mandate that the employer permit the very conduct the Controlled Substance Act forbids. And that’s a no go.

Therefore, it may be employers nationwide do not need to accommodate medical marijuana use under federal or state law.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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