When might firing a medicinal marijuana user be discriminatory?

Ok. Let’s assume that I’m looking to fill another Blogprentice position here at the Bloggerdome.

[FYI – The Blogprentice’s job is to massage my scalp during those brief periods of writer’s block or when I get the vapors, rub my feet at all other times, plus whatever tasks, reasonable or unreasonable, I may assign from time to time. Job pays minimum wage. And, by that, I mean compliments. That is to say, part of the job is to compliment me. Another part is to make sure I’m using compliment correctly (instead of complement)].

All hires must then pass a background check and drug screen.

So, I’m wrapping up an interview with one of my candidates:

“So, who do you think would win in a fight between Spiderman and Batman? And, if you could high five one person, living or not, who would it be? Nennen Sie mir 7 Dinge, die man mit diesem Stift machen kann? 

She’s killing it! She’s hired.

Then comes the drug test, which she fails due to the medicinal marijuana she tells me she’s taking because of her epilepsy.  So, I rescind the offer.

But, let’s say that, before I rescind the offer, my conditional hire and I have a little chat about her epilepsy, from which I form an opinion about the impact it could have on her ability to perform the essential functions of the job. That is to say, I’m concerned. So, between the drug test and the epilepsy, I rescind the offer.

Is that ok? Or might I have violated the Americans with Disabilities Act? Well, according to this recent federal court opinion, it’s a close enough call that a jury would have to decide:

While defendant is no doubt correct that discharge for illegal drug use is a permissible non- discriminatory reason, plaintiffs have introduced evidence creating a genuine issue of material fact as to whether the reason articulated in defendant’s motion for summary judgment is pretext. Holden testified at her deposition that during her employment interview with Legault and Gepfrey, Gepfrey grilled her about her epilepsy and told her that she thought the position would be too stressful for her based on her medical condition. Notes from the EEOC’s investigation and interview of Gepfrey state that she questioned Holden about her epilepsy, including the nature and frequency of her seizures and how she controlled them. Those same interview notes state that Gepfrey’s recommendation after meeting with Holden was “[n]ot to hire her for medical issues said (seizures) and didn’t feel she could handle the stress.”

The federal court later implied that, if the employer had a zero-tolerance drug policy and simply rescinded the offer based on the failed drug test (without discussing the employee’s disability), the employer would have prevailed under the ADA. (Note: Some states with medicinal marijuana laws may have added protections for employees).

So, you can go the zero tolerance route under the ADA. Or, maybe consider a slightly more flexible drug policy with a carve-out for medicinal marijuana, provided that its use does not pose a safety threat in the workplace. (Or have no drug testing policy at all, unless your business is in a regulated industry). Presumably, the marijuana would serve as a reasonable accommodation under the ADA for the employee who needs medicinal marijuana to treat a disability.

By the way, I was just kidding (not kidding) about the Blogprentice position.