The majority of U.S. states have legalized medical marijuana. Yet many of those same states do not have laws on the books regarding testing for marijuana in the workplace, and in the absence of such laws, many companies continue to test employees for marijuana and take adverse action based on positive tests.
As we have written about here, the intersection of marijuana and employment has spawned a growing amount of litigation. The latest case comes from New Jersey. According to an article in www.NJ.com, a New Jersey man has sued Amazon claiming he was fired from his job for a positive marijuana test despite having a valid New Jersey medical marijuana card. The man claims that the termination violated his rights under the Americans with Disabilities Act.
This will be a fascinating case to watch if Amazon decides to contest the litigation. Without diving too deeply into the legal issues, Amazon would appear to have a compelling argument that it cannot possibly have violated the federal Americans with Disabilities Act by taking adverse action against an employee who tested positive for a federally illegal schedule I drug. On the other hand, the plaintiff would seem to have a compelling narrative as well (assuming he was not intoxicated on the job) – he suffered from anxiety and a panic disorder, was prescribed a medication legal under state law, took that medication, and was nevertheless terminated from his employment on that basis alone. Given Americans’ overwhelming support for medical marijuana, that is a compelling case to bring before a jury.
This is also another reminder to companies to review employee drug testing procedures. While Amazon can afford litigation to defend its position, many businesses cannot. With the growing risk of litigation arising out of medical marijuana, and with several states amending their laws (see here and here), it is important that companies make informed decisions regarding their marijuana testing policies, taking into consideration their business needs and their jurisdiction. We can help. Stay tuned to our blog for more news on this developing issue.