She said the quiet part loud and the loud part, well, not at all.

The Americans with Disabilities Act does not protect employee use of illegal drugs. It does not prevent employers from testing applicants or employees for current illegal drug use or making employment decisions based on verifiable results. However, the ADA would protect an employee with a disability who fails a drug test if the employer bases its termination decision on the underlying disability rather than the test result.

But here’s the thing.

The ADA will not help anyone if the employer is unaware of any disability.

In this recent Third Circuit decision, the plaintiff alleged that she uses cannabidiol (CBD) oil derived from hemp to treat a disability, and her employer terminated her employment after she tested positive for THC, believing she violated its drug policy.

According to the plaintiff, an 18-year employee, the company notified her on February 5, 2019, that she had been selected for a random drug screening. On test day, the plaintiff informed an employee from human resources that she was taking an over-the-counter supplement that could produce a positive result for THC. However, the plaintiff did not inform that employee of her medical condition. Instead, she asked what documentation she needed to provide in expectation of a positive result.

In her eventual ADA complaint filed in federal court, the plaintiff alleged the drug test produced a positive result for THC, “and on that sole basis [the company] immediately terminated [her] employment.”

Talk about making the ADA defense easy.

To prevail on an ADA discrimination claim, a plaintiff must plausibly allege that she was terminated due to discrimination. Put another way, the plaintiff must put forth facts that her disability actually motivated the employer’s decision. Otherwise, if no part of the adverse employment decision turned on her disability, the company cannot subject her to disparate treatment on that basis.

Here, the plaintiff did not allege that the company knew of her disability. Instead, she alleged that the company believed that illegal drug use caused her positive drug test tested, and it fired her.

The plaintiff further alleged that the company was wrong. “But being wrong,” as the court noted, “does not mean that [the company] discriminated on the basis of a disability.”

While the ADA may not protect an applicant’s or employee’s job following a failed drug test, many state and local marijuana laws do. I could tell you all about them here. But how about we do this in person at the 2023 EEOC EXCEL Training Conference in Washington, DC? I’m presenting “Weeding through the Haze: State and Federal Marijuana Laws and Implications” on August 1, 2023.

You can register for the event here.