Ninth Court Ruling For Employers-No Marijuana Use!
Many employers require new hire candidates to undergo, and (believe it or not) pass, a drug test prior to commencing employment. There has been a fair amount of litigation over employers’ decisions not to hire candidates who fail drug tests. These candidates most commonly sue, claiming their drug use is tied to some sort of disability and, therefore, is “protected” under the law. Fortunately, this is one of the few areas of law where courts have generally decided the cases favorably to employers. The California Supreme Court has upheld an employer’s right to refuse employment to applicants who test positive for marijuana, even where the employee subsequently claims “medical” marijuana use. Last week, the famously liberal Ninth Circuit also upheld an employer’s right to deny employment to an applicant who failed a drug test, even where the applicant claimed protection under the Americans with Disabilities Act (ADA).
In Lopez v. Pacific Maritime Association, the Ninth Circuit held that an employer’s “one-strike” rule permanently barring employment for any applicant who fails a drug test, did not violate the ADA. The plaintiff applied to be a longshoreman in 1997. At that time, he was apparently addicted to drugs and alcohol and unsurprisingly failed the employer’s drug test, disqualifying him from employment. A few years later, Plaintiff allegedly decided to become clean and sober and re-applied for employment as a longshoreman in 2004. The employer rejected Plaintiff’s application because it had a one-strike rule, whereby applicants who fail a drug test, even once, are permanently disqualified from employment. Plaintiff sued, claiming the employer violated the ADA by discriminating against him based on his protected status as a rehabilitated drug addict. The Court threw out the claim, holding that there was no ADA violation. The employer’s policy treated all test failures the same–whether the failure was due to a disability or mere recreational drug use. The employer did not even know of any disability or rehabilitation status at the time of the drug test or subsequent rejection of his employment application. As a result, the employer could not have discriminated against the Plaintiff on this basis.
The bottom line for employers is that drug testing policies barring employment based on test failures should be bright-line policies and administered as such. In the absence of such a policy, employers remain exposed to claims based on alleged disability discrimination.