Philadelphia Will Ban Pre-Employment Marijuana Testing in 2022

The city of Philadelphia, PA. has enacted a law prohibiting employers from testing for marijuana as a condition of employment, effective January 1, 2022.

The new Chapter 9-4700 of the Philadelphia Code states that except as otherwise provided by law, or as provided in the exceptions (listed below) that it is unlawful for an employer, labor organization, employment agency or agent thereof to require a prospective employee to submit to marijuana testing as a condition of employment.

There are exception in the law for individuals working in certain jobs or professions:

  1. Police officers or other law enforcement positions;
  2. Any position requiring a commercial driver’s license;
  3. Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
  4. Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to this Chapter.

The new law also states that it does not apply to drug testing that is required by:

  1. Any federal or state statute, regulation or order that requires drug testing of prospective employees for purposes of safety or security;
  2. Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer than requires drug testing of prospective employees as a condition of receiving the contract or grant; or
  3. Any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Philadelphia employers should watch for the regulations to be implemented by the agency with enforcement responsibility concerning the types of jobs that “could significantly impact the health or safety of other employees or members of the public.”  In addition, employers should review their drug and alcohol testing policies and be ready to make any required changes prior to January 1, 2022.

California Court Upholds Employer’s Refusal To Hire Applicant Who Failed Pre-Employment Drug Test Due To Medical Marijuana Use

A federal court in California dismissed the disability discrimination claims of a job applicant who failed a pre-employment drug test due to medical marijuana use, holding that he did not sufficiently prove that he was disabled.  More specifically, the court concluded that the applicant’s “subjective belief” that he suffered from “chronic back pain” was insufficient to establish that he was disabled for purposes of the California Fair Employment and Housing Act (“FEHA”) where he failed to “provide any supporting documentation . . . to substantiate the nature of his purported physical disability or any consequent restrictions or limitations on his ability to perform his work.” Espindola v. Wismettac Asian Foods, Inc., No. 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021).

The employer extended an offer of employment to the applicant (who lived in Florida) for an executive level position at their location in California.  Pursuant to the offer letter, the applicant’s employment was at-will and subject to the policies set forth in the employer’s Employee HandbookThe Handbook outlined the employer’s drug testing policy and, specifically, its pre-employment drug testing policy.  The employer did not provide the applicant with a copy of the Handbook nor did the employer explicitly state that the offer of employment was contingent upon passing the pre-employment drug test.

After the applicant’s acceptance of the offer of employment, but prior to starting the position, the employer informed the applicant that he must submit to pre-employment drug testing. The applicant requested the testing be delayed because he had contractors working in his home in Florida and he was going overseas to visit his mother.  The employer obliged and delayed the drug test.  A few days later, the applicant sought a medical marijuana card in Florida.  The drug test was delayed until the applicant’s first day on the job in California.  Prior to his first day of work, he never told anyone that he used medical marijuana or that he was disabled.

While completing the completed the onboarding paperwork, the applicant signed a drug testing consent form.  After completing this paperwork, the applicant informed the employer’s CEO that he suffered from “chronic back pain” and that he had obtained a medical marijuana card from the State of Florida.  As proof that he was prescribed marijuana to treat his purported condition, the applicant submitted correspondence from the Florida Department of Health which confirmed the applicant’s approval for a medical marijuana card.  The correspondence, however, did not contain any information regarding the applicant’s underlying medical condition, or the criteria used in deciding whether to issue a medical marijuana card.

A few days later, the applicant submitted to the pre-employment drug test and tested positive for marijuana.  Upon receipt of the drug test results, the employer terminated the applicant’s employment.

The applicant filed a federal action for, among other things, retaliation and disability discrimination under the FEHA for wrongful termination, failure to accommodate, and failure to engage in the interactive process.  The employer moved for summary judgement on all claims arguing that the applicant could not establish a prima facie case for disability under the FEHA because the mere reporting of subjective symptoms is not sufficient to establish a disability under the FEHA.

The Court agreed with the employer, noting that the applicant failed to provide any supporting documentation that would establish that “his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline,” nor did he “provide any explanation or detail concerning how his chronic back pain limited his ability to work.”   The Court also noted that during the short time that the applicant worked for the employer, he worked full days and completed multiple projects without incident, further demonstrating that the applicant’s purported disability did not impact his ability to work. Moreover, the applicant never made any specific request for an accommodation.

The applicant also argued that the pre-employment drug test was illegal because it was conducted after he commenced working and was used as a pretext to fire him for his disability.  The Court rejected these arguments.  The applicant was advised before his employment started that he would be required to submit to pre-employment drug testing and even was granted a delay in testing at his own request.

Accordingly, the Court granted the employer’s motion for summary judgment in its entirety.

Medical Marijuana Expenses Held Reimbursable In New Jersey Workers’ Compensation Case

The New Jersey Supreme Court ruled that an employer and its workers’ compensation carrier must reimburse an injured worker for his medical marijuana expenses.  Hager v. M&K Construction, 2021 N.J. LEXIS 332 (N.J. April 13, 2021).

Hager suffered a back injury in a work-related accident in 2001.  He underwent surgeries and used opioid medications for chronic pain.  In 2016, Hager enrolled in New Jersey’s medical marijuana program and began using medical marijuana both for pain treatment and to overcome an opioid addiction.  His marijuana prescription cost him more than $600 per month.  A workers’ compensation court ordered the employer to reimburse Hager for the ongoing costs of his medical marijuana costs.  An appellate court affirmed that order.

The employer made several arguments as to why it should not be required to pay for the employee’s medical marijuana expenses.  All were rejected by the New Jersey Supreme Court.

First, the court ruled that the federal Controlled Substances Act (CSA) did not preempt the state’s medical marijuana law, nor would it subject the employer to potential federal criminal liability for aiding-and-abetting.  The CSA is the federal law that makes marijuana illegal.  Despite its illegal status, the court noted that the U.S. Department of Justice has deprioritized marijuana prosecutions and that Congress has prohibited the DOJ from using allocated funds to prevent states from implementing their medical marijuana laws.  The court therefore concluded that the medical marijuana law did not create an obstacle to the accomplishment of congressional objectives and therefore there was no preemption.  In addition, the court was unpersuaded by the employer’s argument that it would be “aiding and abetting” a crime by assisting in Hager’s possession of marijuana which is illegal under the CSA.  Observing that the employer “has gone to great pains” to oppose Hager’s marijuana use – as evidenced by the litigation – reimbursing him for medical marijuana expenses was not aiding his possession of marijuana.  Rather, it was compelled by a court order.  Given the employer’s lack of intent, there was no aiding and abetting of a crime.

Second, the court rejected the employer’s argument that the medical marijuana was not a “reasonable or necessary” treatment under the New Jersey Workers’ Compensation Act.  The court held that medical marijuana may be found – subject to competent medical testimony – to constitute reasonable and necessary care under the New Jersey workers’ compensation scheme.  Hager presented medical testimony that he remained in chronic pain and that ongoing treatment was necessary.  Medical marijuana was deemed to be appropriate medical treatment as it provided pain relief and treated Hager’s addiction to opioids.

Finally, the court rejected the employer’s argument that it fit within an exception in the state’s medical marijuana law.  Specifically, the medical marijuana law provides that reimbursement for medical marijuana costs is not required of “a government medical assistance program or private health insurer.”  The employer claimed to be exempt under this provision.  However, the court held that the legislature did not intend for workers’ compensation insurers to be treated as private health insurers or government medical assistance programs.  The legislature could have explicitly exempted workers’ compensation carriers but did not do so. Therefore, there was no exemption from the reimbursement obligation.

New Marijuana Laws in New Mexico and Virginia

2021 has brought a flurry of activity surrounding marijuana laws, particularly recreational marijuana use. The number of states approving recreational marijuana continues to grow.

New Mexico

On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed the state’s recreational marijuana bill. The New Mexico recreational marijuana law will take effect in late June 2021. Unlike the recent marijuana laws enacted in New York and New Jersey that provide employment protections for off-duty recreational marijuana users, the New Mexico law does not “prevent or infringe upon the rights of an employer to adopt and implement a written zero-tolerance policy regarding the use of cannabis products.”  The law permits employers to take adverse employment actions for the possession or use of marijuana at work or during work hours.  Additionally, the law specifically permits zero-tolerance policies that impose discipline or termination for a positive marijuana test result indicating any amount of THC. However, employers should take note that the law does not restrict rights afforded to medical marijuana users under state law.

Virginia

Effective July 1, 2021, individuals over the age of 21 can lawfully possess up to an ounce of marijuana in Virginia. The new law creates a Virginia Cannabis Control Authority which will implement regulations for the adult use of marijuana market.  In late March, Virginia also amended the state’s medical cannabis law to prohibit discrimination against lawful users of medical cannabis oil. The law, which becomes effective July 1, 2021, does not restrict employers from taking action based on workplace impairment due to use of cannabis oil. It also contains exceptions for employers if compliance with the law would result in a loss of a federal contract or federal funding, and for defense industrial base sector employers.

South Dakota

The fate of recreational marijuana is yet to be determined in South Dakota. As previously reported, voters approved both recreational and medical marijuana initiatives in November 2020. However, the South Dakota recreational measure was later struck down as unconstitutional. That ruling has been appealed, and the South Dakota Supreme Court will hear arguments on the issue later this month.

 

New York Legalizes Recreational Marijuana

New York Governor Andrew Cuomo signed legislation legalizing recreational marijuana on March 31, 2021. The legalized use of marijuana is effective immediately, even though retail sales of marijuana are not expected to begin until mid-2022. This change potentially immediately impacts a New York employer’s ability to take adverse actions against applicants and employees based on recreational marijuana usage.

The Marihuana Regulation and Taxation Act (MRTA) legalizes and regulates cannabis use and possession for adults who are 21 and older. The MRTA creates a new Cannabis Law and consolidates the laws affecting recreational adult-use of cannabis, medical marijuana, and the cannabinoid hemp program. These programs will be overseen and regulated by a newly created Cannabis Control Board and the Office of Cannabis Management.

Effective immediately, adults who are 21 and older may possess up to three ounces of cannabis and up to 24 grams of concentrated cannabis and may use cannabis except as may otherwise be prohibited by state law.  The law does not permit driving while under the influence of cannabis or smoking cannabis in locations where smoking tobacco is prohibited. It also does not require any individual to engage in any conduct that violates federal law, among other things.

Amendment to Legal Activities Law

The most significant provisions for employers are the amendments to Section 201-d of the New York Labor Law. MRTA provides that an employer must adhere to policies regarding cannabis in accordance with Labor Law Section 201-d. This means that New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property. However, Section 201-d is amended to say that an employer would not be in violation of that law where the employer takes action related to the use of cannabis based on the following:

  1. The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
  2. The employee is impaired by the use of cannabis; meaning, the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
  3. The employer’s actions would require such employer to commit an act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Changes to Medical Marijuana Law

Oversight of the state’s medical marijuana program will shift from the Department of Health to the Office of Cannabis Management. Any medical condition will qualify for medical marijuana use, as recommended by a medical practitioner, and the types of products that may be used will expand and marijuana can be sold to medical users in leaf/flower form.  Medical marijuana users will still be deemed to have a “disability” within the meaning of the New York Human Rights Law.

MRTA also provides that employees who use medical cannabis must be afforded the same rights, procedures, and protections that are available and applicable to injured workers under the workers’ compensation law, when such injured workers are prescribed medications that may prohibit, restrict, or require the modification of the performance of their job duties.

Driving Under the Influence

MRTA directs the state police to increase the number of trained and certified drug recognition experts and provide increased drug recognition awareness and advanced roadside impaired driving enforcement training.

The Department of Health is directed to conduct research to evaluate methodologies and technologies for the detection of cannabis-impaired driving and to present its findings to the legislature on or before December 31, 2022. Thereafter the Department of Health may promulgate rules and regulations to approve and certify a test to detect current cannabis impairment by operators of motor vehicles.

Practical Considerations

New York employers should review their drug and alcohol testing policies to decide whether they will continue to test for marijuana and, if so, under what circumstances. Supervisors should be trained to make reasonable suspicion determinations so that disciplinary actions based on positive marijuana reasonable suspicion tests will be defensible.

Connecticut Medical Marijuana User Could Not Proceed With ADA Claims

The District Court of Connecticut dismissed employment discrimination claims asserted under the Americans with Disabilities Act (“ADA”) with regard to state authorized medical marijuana use.  Eccleston v. City of Waterbury, No. 3:19-cv-1614, 2021 U.S. Dist. LEXIS 52835 (D. Conn. Mar. 22, 2021).

The employee was employed as a firefighter by the City.  His employment was terminated after he tested positive for marijuana on a random drug test.  The employee argued that his test result should have been treated as a negative because he had a Connecticut Registration Certificate for medical marijuana use; however, the City discharged him due to his use of marijuana “such that it has endangered the health and wellbeing of others.”

The employee filed a federal action for disability discrimination under both the ADA and state medical marijuana laws.  The City moved to dismiss the employee’s ADA claims arguing that the statute specifically excludes “any employee . . . who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” Id. (quoting 42 U.S.C. § 12111(6); 21 U.S.C. § 812(b)(1)(a)-(c)).  The court noted that the ADA relies on the federal Controlled Substances Act to define “illegal drug use,” and under the Controlled Substances Act, marijuana is an illegal drug.

The City further argued that the employee’s marijuana use did not qualify for ADA protection under the supervision of a physician exception because the use of marijuana is still strictly prohibited under federal law.  The Court agreed with the City and concluded that the employee’s state-sanctioned use of medical marijuana was not protected by the ADA.

The Court further held that the employee failed to state a claim for discrimination based upon the illness underlying his medical marijuana state certification because he did not claim that he ever informed his employer of the medical condition.

Additionally, the employee asserted that his state certification to use medical marijuana entitled him to the reasonable accommodation of testing positive for marijuana with impunity.  The Court again disagreed, citing to several federal cases which relied upon the Controlled Substances Act’s “classification of marijuana as a Schedule I illegal substance to conclude that using marijuana is not a reasonable accommodation.”

With regard to the employee’s retaliation claim, the Court held that merely indicating to his employer that he was considering obtaining a medical marijuana card did not qualify as a protected activity under the ADA.

Accordingly, the Court dismissed the employee’s federal claims under the ADA and declined to exercise supplemental jurisdiction over the state law claims.  The state law claims were therefore dismissed without prejudice so the employee may refile in State court.

Missouri Employer Had Just Cause To Terminate Union Employee Who Tested Positive For Marijuana, Despite Lack of Workplace Impairment

A Missouri-based manufacturer of animal pharmaceuticals had just cause to terminate a 37-year employee who tested positive for marijuana despite the union’s argument that the employee’s personal use of CBD oil and marijuana did not cause impairment at work.  Virbac Corporation and International Brotherhood of Electrical Workers, Local 1, (January 10, 2020) (Horn, Arb.)

The employer required the employee, a maintenance electrician and member of the company’s safety committee, to submit to a drug test as part of a return-to-duty physical following a 47-day medical leave of absence. The employer’s policy required drug testing at the end of any medical leave lasting more than 30 days. The employee tested positive for marijuana. He admitted that he used marijuana during his medical leave to help him sleep and he further admitted that he used CBD oil to help with arthritis and chronic back pain. However, the employee was not a licensed medical marijuana user under Missouri law.

The drug test was subject to confirmatory testing, and a Medical Review Officer attempted to reach the employee before certifying the results. Due to the employee’s failure to respond, the Medical Review Officer reported the test result as positive. The employer then suspended the employee pending investigation, giving the employee an opportunity to provide documentation to explain the test result. The employee failed to do so, and the employer terminated the employee.

The employer routinely terminated employees when they tested positive for drugs, including marijuana.  The employee was familiar with the 30-day drug testing rule and had been tested under that rule once before, without complaint.

The employee filed two union grievances regarding the termination. During the initial grievance meetings, the employee claimed he tested positive for marijuana due to lawful CBD oil use. However, during the arbitration, the employee admitted that he smoked marijuana both before he was tested and after he was tested and returned to work. The employee’s medical records also revealed that he asked his doctor about medical marijuana, but the employee’s doctor suspected he was attempting to “further his addiction.”

The arbitrator determined that the employer met its burden of showing just cause, reasoning that the legalization of marijuana “whether medicinal or recreational,” does not require employers to embrace the use of “legal” marijuana products. The arbitrator further found that the Department of Human Health and Services’ testing thresholds are “effective, lawful and enforceable,” and do not require “impairment.” The arbitrator recognized the employee’s significant tenure with the company, but ultimately found the employee’s dishonesty regarding his marijuana use was an aggravating circumstance and that his behavior was particularly egregious given his role on the safety committee.

Although the union setting is unique, this decision reinforces the importance of ensuring employees have notice of the employer’s position on marijuana and CBD products (recognizing any state law obligations), and to enforce a drug and alcohol testing policy consistently.

How New Jersey’s Recreational Marijuana Law Significantly Affects Workplace Drug Testing

New Jersey Governor Phil Murphy signed into law three marijuana reform bills on February 22, 2021. The first, New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (A21), legalizes and regulates cannabis use and possession for adults who are 21 and older. Two other laws decriminalize marijuana and hashish possession (A1897) and clarify marijuana and cannabis use and possession penalties for individuals younger than 21 years old (S3454).

Recreational Marijuana Law and Impact on Employers

New Jersey voters approved legalized recreational marijuana by ballot initiative on Election Day 2020. Now, that bill has been signed into law, although many provisions will not be operative for some time. The law creates a Cannabis Regulatory Commission to regulate the use, purchase, sale, and production of cannabis, among other things. The Commission will have 180 days (or 45 days from the date that all members of the Commission are appointed) to adopt rules and regulations to implement the law. It is generally expected that it will take at least a year before legalized cannabis is available in New Jersey.

The law permits anyone age 21 or older to possess, use, and purchase small amounts of cannabis. For purposes of the recreational marijuana law, the term “cannabis” excludes medical marijuana dispensed under the Jake Honig Compassionate Use Medical Cannabis Act, as well as hemp products under the New Jersey Hemp Farming Act.

The recreational marijuana law has several provisions that affect employers:

  • Employers may not refuse to hire or employ an individual who uses cannabis, unless failing to do so would place the employer in violation of a federal contract or cause it to lose federal funding.
  • Employers still are permitted to maintain drug- and alcohol-free workplaces and are not required to accommodate the use, possession, sale, or transfer of cannabis in the workplace and may prohibit being under the influence or intoxication during work hours.
  • Employers may not take adverse action against applicants or employees who use cannabis, or solely because the applicant or employee tests positive for cannabinoid metabolites. The law defines “adverse employment action” as refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.
  • However, employers still may require employees to undergo reasonable suspicion testing, post-accident testing, random testing, and pre-employment testing, as long as the drug test includes scientifically reliable testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment. The physical evaluation must be conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof, related to the use of cannabis. The Commission, in consultation with the Police Training Commission, must prescribe standards for a Workplace Impairment Recognition Expert, who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and for assisting in the investigation of workplace accidents. Workplace Impairment Recognition Experts will be certified by the Commission. In accordance with these requirements, employers may use the results of the drugs when determining appropriate employment actions.

Decriminalization of Marijuana Law and Impact on Employers

Employers are not permitted to consider when making an employment decision and cannot require an applicant to reveal or take any adverse action against an applicant solely on the basis of any arrest, charge, or conviction for certain types of marijuana and hashish offenses.

Employers who violate this provision will be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. These penalties are the sole remedy provided for violations of this provision. It does not create a private right of action against an employer by an aggrieved person.

Practical Considerations

The provisions that affect employers are not immediately operative, and it is hoped the Commission’s rules and regulations will clarify the restrictions on workplace drug testing and the actions that employers may take in response to marijuana drug tests.

In the interim, New Jersey employers should review their drug and alcohol testing policies to decide whether they will continue to test for marijuana and, if so, under what circumstances. Supervisors should be trained to make reasonable suspicion determinations and thought should be given to which individuals the employer will designate as Workplace Impairment Recognition Experts.

DOT Random Drug and Alcohol Testing Rates for 2021

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2021.  The random test rates did not change for 2021.

 

Agency 2021 Random Drug Testing Rate 2021 Random Alcohol Testing Rate
Federal Aviation Administration

 

25% 10%
Federal Motor Carrier Administration

 

50% 10%
Federal Railway Administration

 

25%  covered service 10%  covered service
Federal Railway Administration 50% maintenance-of-way 25% maintenance-of-way
Federal Transit Administration

 

50% 10%
Pipeline and Hazardous Materials Safety Administration

 

50% N/A
United States Coast Guard

 

50% N/A

 

 

Pennsylvania Medical Marijuana User May Proceed With Disability Discrimination And Retaliation Claims

A federal court in Pennsylvania held that a medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.   Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Jan. 7, 2021).

The employer terminated the employee’s employment after she tested positive for marijuana on a return-to-duty drug test. The employee’s medical marijuana card was expired at the time she tested positive. However, she subsequently renewed it and provided a doctor’s note stating her positive test was consistent with her prescription (pre-expiration).

In September 2020, the employer moved to dismiss the employee’s claims for violation of the Pennsylvania Medical Marijuana Act (MMA), disability discrimination and retaliation. See Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Sept. 25, 2020). The court denied the motion with respect to the MMA claim, but dismissed without prejudice disability discrimination and retaliation claims due the employee’s failure to exhaust her administrative remedies. We blogged about that decision here.

After exhausting her administrative remedies under the Pennsylvania Human Rights Act (PHRA) and Philadelphia Fair Practice Ordinance (PFPO), the employee re-asserted her disability discrimination and retaliation claims. The employee specifically claimed the employer failed to accommodate her disability and terminated her employment in retaliation for requesting accommodations.

Again, the employer moved to dismiss the claims. First, the employer argued that the employee’s medical marijuana use could not constitute a disability under the PHRA and that using marijuana is not a reasonable accommodation. The court rejected these arguments, reasoning that the employee alleged a specific medical condition (herniated disc and related spinal injuries) and her disability was not solely based on using medical marijuana. The court also found that she had requested several accommodations other than marijuana use — some of which the employer had granted in the past — and that the employer failed to engage in the interactive process.

The employer also argued the employee’s report of medical marijuana usage could not constitute protected activity for purposes of the employee’s retaliation claim.  But the court found that the employee’s request to split her time between work and home constituted a request for a reasonable accommodation and was sufficient to satisfy her burden on a motion to dismiss. The court further reasoned that it did not matter whether the employee’s medical marijuana usage fell outside of the PHRA’s definition of disability or handicap, because the employee only needed to show that she requested an accommodation in good faith. Her retaliation claim was not contingent on showing an actual disability.

Although the decision is in the early stages of the case, it highlights the fact that medical marijuana use is often intertwined with reasonable accommodation requests and may subject employers to disability discrimination and retaliation claims.

LexBlog