Recently, the U.S. District Court for the Central District of California in Espindola v. Wismettac Asian Foods, Inc., dismissed a lawsuit of a former employee who claimed disability discrimination after he was terminated for testing positive for marijuana in a pre-employment drug test. The Court held that an employer can condition an offer of employment on passing a pre-employment drug screening, including a test for marijuana (the recreational use of which has been legal in California since 2018). The Court further held that an employer does not have any obligation to engage in the interactive process before terminating an employee under such circumstances.
The employer in Espindola contacted the employee to schedule a pre-employment drug screening. The employer required all prospective employees after they were offered a position and before starting work to undergo the drug screening. Espindola’s screening was postponed until after employment began at the employee’s request. The employee then completed a “personnel information sheet” on which he indicated he was not “disabled,” and signed a drug testing consent form that disclosed for the first time that he had “chronic back pain” and had been “prescribed” marijuana to treat his condition. Espindola did not provide any details or documentation to substantiate the nature of his condition or to explain any limitations on his ability to perform his job. He also forwarded Human Resources his medical marijuana card (which he obtained after he learned of the impending drug test), took the required drug test, and tested positive for marijuana. His employment was then terminated based on the results of the drug test. In response, Espindola filed a lawsuit for retaliation and disability discrimination under the California Fair Employment and Housing Act (“FEHA”) as well as claims for wrongful termination, failure to accommodate a disability, and failure to engage in the interactive process.
The Court granted the employer’s summary judgment motion and ruled that the employee failed to establish he suffered from a disability given the lack of detail or documentation submitted to the employer. The Court held that chronic back pain “without more” does not qualify as a disability under FEHA and that “an employer does not have to accept an employee’s subjective belief that he is disabled.” Further, the Court held the employer established a legitimate, nondiscriminatory reason for the employee’s termination (i.e., the failed drug test), and it was under no obligation to engage in the interactive process before the employee passed the test.
The Court also concluded that Espindola could not rely upon his own delay in submitting to the drug test to argue that he was no longer an applicant at the time of the test, thus giving him greater privacy rights as an employee.
The Espindola case means that, at least in a California Federal Court, detection of marijuana in an employer pre-employment drug screening for an employee can be grounds for an employee’s termination even if the drug detected is legal. It is uncertain whether California State Courts will follow Espindola, however, there have been indications that they will. Thus, employees should check with their legal counsel before submitting to a pre-employment drug test. Employers should consult with legal counsel before terminating employees for detection of legal drugs in an employee’s system.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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