In Espindola v. Wismettac Asian Foods, Inc., a plaintiff claimed disability discrimination after being terminated for testing positive for marijuana as part of a pre-employment drug test. In its decision, the U.S. District Court held that an employer can offer employment with the condition that the individual must first pass a pre-employment drug screening, which may include marijuana as part of the panel. Even though the substance has been recreationally legal in California since 2018, the Court contended that an employer is not obligated to engage in the interactive process before terminating an employee.

Here, the employer's policy requires a pre-employment drug screen for all prospective employees. The employer granted the plaintiff's request to postpone the drug screen until after he began working for the company. The plaintiff then indicated on an internal personnel form that he was not "disabled," signed a drug screen consent form and disclosed, for the first time, that he had been prescribed marijuana to treat chronic back pain. The plaintiff did not supply the employer any substantiating details or documentation regarding his condition or any potential job performance limitations.

The plaintiff forwarded his medical marijuana card to the HR department, which he obtained after being informed of the impending drug test. He subsequently submitted to the test (which returned a positive result for marijuana) and was then terminated based on that outcome. The plaintiff responded by filing a retaliation and disability discrimination lawsuit under the California Fair Employment and Housing Act ("FEHA") in addition to claims for wrongful termination, failure to accommodate a disability and failure to engage in the interactive process.

In addition to the permitted use of pre-employment drug testing, the Court further held that allegations of pain, without more, do not qualify as a disability and "an employer does not have to accept an employee's subjective belief that he is disabled." Since sufficient detail or documentation was never provided to the employer, the Plaintiff failed to establish he suffered from a disability.

Employers are encouraged to periodically review jurisdictional legislation regarding the legalization of marijuana and internal policies on drug screening to determine if adjustments to the hiring process may be required.

Posted: August 10, 2021