the situation
As part of your post-hiring process, you
make new employees undergo a drug test. One such employee tests positive
for marijuana—but explains that he is using marijuana medicinally at
the recommendation of his doctor. Your policy states that you will
terminate any new employee who does not provide a clean drug screen. Can
you terminate him?
the ruling
A federal court in New Mexico recently
concluded that an employer could terminate an employee under these
circumstances without violating the New Mexico Human Rights Act. Garcia
v. Tractor Supply Co., No. CV 15-00735 (D.N.M. January 7, 2016). Rojerio
Garcia applied for a management position with Tractor Supply Company.
Garcia suffered from HIV/AIDS and his recommended treatment included the
use of medical marijuana. Garcia ended up applying for and being
accepted into the New Mexico Medical Cannibis Program (an agency of the
state department of health authorized by what is known as the
Compassionate Use Act). Garcia told Tractor Supply about his diagnosis
and participation in the Medical Cannibis Program during his first
interview. Garcia was hired for the job—but then failed his post-hire
drug test. Tractor Supply fired him based on this positive drug test.
Garcia complained to the New Mexico Human
Rights Division of unlawful discrimination and ultimately filed a
lawsuit, claiming that he was terminated based on his serious medical
condition and his doctors’ recommendation to use medical marijuana.
The gist of Garcia’s claim was that medical
marijuana is an accommodation that must be provided by employers under
the New Mexico Human Rights Act (because the Compassionate Use Act makes
medical marijuana an accommodation promoted by the public policy of New
Mexico). The federal court dismissed Garcia’s claim. The court pointed
out that some states (Connecticut and Delaware) have specifically
required by statute that employers accommodate medical marijuana
cardholders—but New Mexico has not taken this step. Here, Garcia was not
fired because of or on the basis of his serious medical condition—his
use of and testing positive for marijuana “is not a manifestation of
HIV/AIDS.” Basically, testing positive for a drug was not conduct
resulting from Garcia’s condition.
One of Garcia’s arguments was that New Mexico state courts had found
medical marijuana to be compensable under state workers compensation
laws. However, as the court explained, there is “a fundamental
difference between requiring compensation for medical treatment and
affirmatively requiring an employer to accommodate an employee’s use of a
drug that is still illegal under federal law.” Similarly, just because
state medical marijuana laws provide some immunity to the federal law
does not mean that the state can force employers to accommodate what
federal law prohibits.
the point
While this case was analyzed under the New Mexico Human Rights Act,
to the extent that medical marijuana use has been authorized in any
state, the same type of issues may arise. If employers have a policy
prohibiting the use of illegal drugs and apply that policy uniformly,
even when medical marijuana use is involved, they may be able to avoid
liability for the type of discrimination claim raised by Garcia. At the
same time, employers should be aware of the laws of each of the states
in which they have employees and to the extent there is a requirement of
employer accommodation, be aware of the requirement and develop a
process for insuring compliance with it.
Originally posted on Virginia Employer Law Blog, by Elaine I. Hogan on February 3, 2016.