In an ADA retaliation case, a positive marijuana test looked like a clean exit. It wasn’t.
What tripped up the employer wasn’t the test result itself, but how the termination decision unfolded around it – including uneven discipline, disputed facts, and timing tied to disability-related absences.
TL;DR: A federal court allowed an ADA retaliation claim to proceed even after an employee was terminated following a positive marijuana test. Evidence that the employer treated the employee more harshly than others, combined with conflicting accounts of what prompted the termination and its timing shortly after accommodation-related absences, was enough to send the case to a jury.
The setup: disability, accommodations, and a “gummy”
The employee was a long-tenured hospital manager with a serious spinal condition. Over the years, he received multiple accommodations, including medical leave and a modified schedule. By early 2021, management knew his condition was worsening and that he was missing full days of work for physical therapy.
That context mattered.
In January 2021, the employee led a staff meeting. Afterward, subordinates raised concerns about his demeanor and comments about eating a “gummy.” According to the employer, he appeared lethargic, talked about being “high,” discussed marijuana gummies, and even drew a picture showing how much to eat.
The employee told a different story. He said he discussed an over-the-counter CBD gummy, not marijuana, that it made him sick rather than high, and that his doctor recommended CBD for pain. He denied drawing any picture or admitting marijuana use and said the employer already knew about his CBD use.
A drug test – and then termination
Management initiated a fitness-for-duty investigation. The employee denied marijuana use, acknowledged CBD use, and agreed to a drug test. The test came back positive for marijuana metabolites. The parties disputed the levels and whether CBD use could have contributed.
About two weeks later, the employer terminated him.
Why the employer couldn’t end the case
The employer pointed to three reasons for termination: the staff-meeting conduct, the positive marijuana test, and alleged dishonesty. Any of those could justify termination.
The problem was consistency.
Uneven discipline raised red flags
The record showed evidence that:
-
The employer had a policy allowing employees who tested positive for drugs or alcohol to return to work under a last chance agreement.
-
HR witnesses could not identify another non-probationary employee terminated for a first marijuana offense.
-
Third-party case managers were surprised the employee was terminated outright.
That was enough for a jury to conclude the employee was treated more harshly than others.
The “gummy” story didn’t hold together
The employer’s account of the staff meeting was disputed in key ways:
-
A subordinate testified the employee did not appear lethargic or discuss THC gummies.
-
Evidence suggested decision-makers relied on information they may not have actually seen at the time.
-
Alleged admissions of marijuana use were denied by the supposed listeners.
The court didn’t decide who was right. It held only that a jury could reasonably disbelieve the employer’s version – classic pretext territory.
Timing tied it together
All of this happened shortly after management knew the employee’s condition was worsening and that he needed time away for treatment. That timing, combined with disputed facts and uneven discipline, was enough to keep the retaliation claim alive.
The bottom line
Positive marijuana tests often win cases. Inconsistent explanations can sink them. Here, the employer’s inability to explain why termination was chosen over lesser discipline was enough to send the case to a jury.