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Americans with Disabilities Act
Title I
“No [employer] shall discriminate against a
qualified person with a disability because of
the disability of such individual in regard to
job application procedures, the hiring,
advancement, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges of
employment.”](https://image.slidesharecdn.com/medicalmarijuanaintheworkplace-170522193641/75/Medical-Marijuana-in-the-Workplace-16-2048.jpg)
Uploaded byEmployers Association of New Jersey
Medical Marijuana in the Workplace
Smith, an employee, was prescribed medical marijuana to treat chronic back pain from his military service. He was fired after failing a mandatory drug test required by his employer's new defense contract. Smith has sued his former employer, claiming violations of laws including the Americans with Disabilities Act and the New Jersey medical marijuana act.
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Medical Marijuana in the Workplace
- 1. Medical Marijuana inthe Workplace John J. Sarno, Esq. Employers Association of New Jersey
- 2. 2 N.J. Compassionate Use MedicalMarijuana Act Effective: April 18, 2010 15th state to authorize use of medical marijuana, first in region.
- 3.
- 4. 4 Smith v. LiveWire Telecom Superior Court of N.J. (2010) The Facts: As a result of injuries sustained during military service in Iraq, Paul Smith suffers from chronic back pain and muscle spasms. After muscle relaxants and conventional medications failed to provide relief, Smith’s doctor prescribed use of marijuana on an as needed basis to counteract spasms, relieve pain and to induce sleep before bedtime.
- 5. 5 As a systemsanalyst at Live Wire Telecom, Smith’s job performance has always been top rate before and after his tour of duty. His attendance is excellent and he has received merit-based performance bonuses. Prior to Live Wire instituting its drug testing policy, Smith had been regularly using his marijuana prescription for about 8 months. But at the time of the drug test, as his pain and spasms had improved, Smith had been using marijuana about two or three times per month for the last two months.
- 6. 6 Live Wire’s drugtest was recommended as a best practice, but not required, under a new contract with the U.S. Department of Defense, for which Smith and most other employees would be working. Smith tested positive for marijuana that he had used about 10-days before the test. He informed HR of his prescription and provided a doctor’s note. However, two days later Smith was informed that due to failing the drug test, he could not work on the contract. He was also told that due to the reorganization that was required to meet the contract’s demands, his old job was eliminated.
- 7. 7 Smith files suitalleging violations under the N.J. Compassionate Use Medical Marijuana Act (the “Medical Marijuana Act”), the Americans with Disabilities Act (ADA), the N.J. Law Against Discrimination (LAD), the Family Medical Leave Act (FMLA), the Health Insurance Portability Act (HIPAA) and common law wrongful discharge.
- 8. 8 Questions: Does theMedical Marijuana Act provide a private right of action? Does terminating an employee using medical marijuana violate the ADA or LAD? Does the ADA or LAD require reasonable accommodations? Does the FMLA require a leave of absence for medical marijuana use? Does HIPAA or ADA privacy rules apply? Do the circumstances of the discharge create an exception to the employment at-will rule?
- 9. 9 The Medical MarijuanaAct Legislative Findings – 99% of marijuana arrests are made under state law Federal law prohibits the use of marijuana as a controlled substance, although some states permit medical use States are not required to enforce federal law, therefore compliance with this Act does not put the State of New Jersey in violation of federal law
- 10. 10 Medical Marijuana Act (continued) •Authorizes use of prescribed amounts of marijuana by a “qualified patient”. “Qualified patient” means a person who has been diagnosed as having a “debilitating medical condition”. “Debilitating medical condition” means a chronic or debilitating disease or medical condition that produces severe or chronic pain, severe nausea, severe and persistent muscle spasms, or other condition approved by the N.J. Department of Health.
- 11. 11 A qualifiedpatient will be issued a Registry ID card. A qualified patient is not subject to arrest, prosecution or penalty. Cannot use medical marijuana while operating a vehicle or in a public recreation location or near school. Nothing in the Act requires health insurance reimbursement. Nothing in the Act requires an employer to accommodate the medical use of marijuana “in any workplace”.
- 12. 12 Does the MedicalMarijuana Act create a private right of action by an employee against an employer? A: Not likely Johnson v. Columbia Falls Aluminum Co. Montana (2009) Employee failed to inform employer of medical marijuana use, failed drug test, and declined to sign “last chance” agreement. Employee suspended and later fired
- 13. 13 Montana law providesthat it does not require employers “to accommodate the medical use of marijuana in any workplace”. Court finds that this language does not support a private lawsuit brought by an employee against an employer alleging a violation of the Medical Marijuana Law.
- 14. 14 Factors a courtwill likely consider: 1. whether a statute creates a “special benefit” for a class of persons; 2. whether the Legislative history suggests that the Legislature intended to create a private remedy; 3. whether granting a private action furthers the law.
- 15. 15 Can Smith befired for failing the drug test? A: Discharge most likely does not violate the ADA under the facts of the case.
- 16. 16 Americans with DisabilitiesAct Title I “No [employer] shall discriminate against a qualified person with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
- 17. 17 Discrimination Limiting jobopportunities Using standards or selection criteria that have the effect of discrimination Denying equal benefits Not making reasonable accommodation Failing to account for a disability when administering employment tests Failing to account for a disability when measuring skills, aptitudes or performance Conducting pre-employment medical examinations as to the nature or severity of a disability (post offer examinations must be job related and consistent with business necessity)
- 18. • Disparate ImpactDiscrimination Medical examinations that may unjustifiably discriminate. Medical exams must be job- related and consistent with business necessity. • Disparate Treatment Discrimination Unequal treatment. Employer needs a non- discriminatory reason. 18
- 19. 19 “Reasonable Accommodation” may include: 1.Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; or 2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examination, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities
- 20. 20 The ADA permitsan employer to adopt or administer reasonable policies or procedures, including drug testing. “Qualified person with a disability” does not include any applicant or employee who is currently engaging in illegal use of drugs.
- 21. 21 Since the marijuanahas been prescribed under N.J. law, Smith may not be engaging in the “illegal use of drugs” under state law (but would still be under federal law). In either case, he is using an “illegal drug”.
- 22. 22 Ross v. Ragingwire Telecommunications,Inc. California Supreme Court (2008) Finds that marijuana remains illegal under federal law and that California’s Compassionate Use Act did not “take the additional step of requiring employers to accommodate marijuana use by their employees”.
- 23. 23 Even though Smithis not engaging in the “illegal use of drugs”, he is not a “qualified” person with a disability because he tested positive for an “illegal drug”.
- 24. 24 What about “reasonable accommodation”? Isthe employer required to modify its drug testing policy as it applies to persons with disabilities who use medical marijuana? A: Not in this case The Medical Marijuana Act states “nothing in the law should be read to require employers to accommodate the medical use of marijuana in any workplace”.
- 25. 25 Raytheon v. Hernandez U.S.Supreme Court (2003) Employer’s refusal to rehire employee who tested positive for illegal drugs under a no-rehire policy “for cause” upheld even though employee was no longer using illegal drugs.
- 26. 26 “Qualified person witha disability” does not include any applicant or employee who is currently engaging in illegal use of drugs. However, a qualified person with a disability may be a person who: 1. Has successfully completed a supervised drug rehabilitation program and who is no longer engaging in the illegal use of drugs, 2. Is participating in a supervised rehabilitation program and is no longer engaging in the illegal use of drugs, or 3. Is erroneously regarded as engaging in illegal use of drugs but is not engaging in such use.
- 27. 27 Failure to re-hirewas for a legitimate nondiscriminatory reason: being fired “for cause”. Employer’s non-rehire policy “is a quintessential legitimate, non discriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules”.
- 28. Since marijuana canbe prescribed to treat a disabling condition, a test for marijuana may be considered a “medical examination.” Medical examinations must be job-related and consistent with business necessity. 28
- 29. Reasonable belief, basedon objective evidence that 1) An employee’s ability to perform essential functions is or will be impaired by a medical condition, or 2) An employee will pose a direct threat 29
- 30. 30 “Direct Threat” “Significant riskof substantial harm to the health or safety of the individual or other that can be eliminated or reduced by reasonable accommodation.”
- 31. 31 The Medical MarijuanaAct does not compel employers to consider accommodations “in any workplace”. But what about time off to try other medications that would not violate the drug test?
- 32. 32 Permitting the useof accrued paid leave or unpaid leave is a form of reasonable accommodation under ADA Obtaining treatment Recuperation
- 33. 33 Employer may berequired to grant a reasonable time to change medications and re-test. Many policies already allow time for treatment for substance abuse.
- 34. Family Medical LeaveAct Time off for employee’s “serious health condition” 34
- 35. 35 Serious Health Condition Illness,physical or mental condition requiring: 1) Inpatient care 2) Incapacity for more than three days with treatment by health care provider… a) two or more times, first visit within 7 days and subsequent w/in 30 days of incapacity b) one time (w/in 7 days of incapacity) with continuing regimen 3) Incapacity due to pregnancy 4) Incapacity due to chronic, (requires periodic dr. visits at least twice a year) permanent, or long-term condition or for multiple treatments
- 36. If employee isunable to perform essential functions of the job, the ADA may apply. Employee who violates company drug policy is not performing essential functions. No need to accommodate, i.e.: modify drug policy 36
- 37. 37 N.J. Law AgainstDiscrimination Unless it can be clearly shown that a person’s disability would prevent such person from performing a particular job, it is an unlawful employment practice to deny an otherwise qualified person with a disability the opportunity to obtain or maintain employment, or to advance in position solely because such person is disabled. Requires reasonable accommodations
- 38. 38 Ross v. Ragingwire Telecommunications CaliforniaSupreme Court (2008) California Fair Employment Act requires reasonable accommodations but medical marijuana use conflicts with employers’ drug testing policy. Nothing in the Medical Marijuana suggests it was intended to “address the respective rights and obligations of employers and employees”.
- 39. 39 LAD analysis willmost likely follow the ADA analysis Employer will not be required to modify drug test Employer may be required to grant time off, under the circumstances, if reasonable and allow a re-test.
- 40. 40 What About At-WillEmployment? An employer can discharge an at-will employee with or without cause, with or without notice, for any or no reason. unless The discharge is “incompatible with a clear mandate of public policy”. Public policy must be “firmly grounded” not “vague, controversial, unsettled or problematic”.
- 41. 41 Hampton v. ArmandCorporation N.J. App. Div (2004) Court rules that employee who is not eligible for FMLA leave could be fired while on sick leave. Does the FMLA create a clear mandate of public policy? NO: FMLA job protection is expressly limited to eligibility criteria. Court observes that some discharges offend public policy such as firing an employee for bringing a workers’ compensation claim. However, in that situation, the WC statute creates public policy.
- 42. 42 Does the MedicalMarijuana Act create a “clear mandate of public policy” restricting the right of employers to make a discharge decision? The only mention of “employer” states that employers do not have to provide accommodations but the ADA/LAD is violated when employee is fired for using prescription drugs.
- 43. Health Insurance Portability andAccountability Act (HIPAA) Employment decisions can be based on the results of a physical or drug test. Employee must authorize disclosure to employer. Disclosure can be a condition of hire or return to work. 43
- 44. Employer would notbe violating privacy rules, since employee would be authorizing disclosure. 44
- 45. What happens whenemployee discloses medical marijuana use? Does it violate company policy? If so, then what? Employer may be required to grant time off to change medications. 45
- 46. ADA Privacy Rules Employercan not make a “medical inquiry” without justification. Medical inquiry includes asking an employee about prescription drugs. 46
- 47. Employer can makea medical inquiry if there is: 1) Objective evidence that a medical condition is impairing the performance of essential job functions, or 2) Objective evidence suggests employee poses a “direct threat.” 47
- 48. 48 It is notlikely that Smith’s discharge violates a “clear mandate of public policy”. Medical Marijuana Act governs medical care not employment relations— although it may require the N.J. Supreme Court to pass final judgment.
- 49. 49 What about jobcandidates? A: Follow the ADA/LAD analysis Not required to modify or waive drug test. May be required to offer a re-test, if reasonable.
- 50.