Last month, a Hawaii federal district court judge denied an employer’s motion to dismiss an applicant’s claim for disability discrimination under the Americans with Disabilities Act (ADA) where the employer merely assumed that an applicant who admitted to having a medical marijuana card was a current marijuana user and would fail a drug test.  Specifically, in Kamakeeaina v. Armstrong Produce, Ltd., Case No. 18-cv-00480-DKW-RT (D. Haw. March 22, 2019), the plaintiff claimed that he suffered from post-traumatic stress disorder (PTSD) and depression. After the employer made a conditional offer of employment to the plaintiff, the employer advised him that he was required to, among other things, pass a drug test. During a subsequent interview with the employer’s Human Resources Director, the plaintiff advised that he was registered under Hawaii’s Medical Cannabis Program. After continued conversation between the two, the Human Resources Director told the plaintiff that the employer would withdraw the job offer if he tested positive for drugs. The plaintiff responded that he was “prepared to have the offer taken off the table.” After further conversation, but without actually administering a drug test, the Human Resources Director withdrew the plaintiff’s employment offer.

The employer argued in its motion to dismiss that the plaintiff was not a qualified individual with a disability under the ADA because he admitted in his federal court complaint to being a marijuana user. The court was not persuaded, noting that while the ADA does not protect those “currently engaging” in the use of illegal drugs, including marijuana, there was no allegation in the complaint that the plaintiff was actually using marijuana “at the time of his interview with [the employer] or in the days or weeks before” the interview. The employer then pointed to the plaintiff’s statements during the interview that he had a medical marijuana card and that he was prepared to have the offer “taken off the table” if he failed the drug test. The court concluded, however, that while one inference from the statements was that the plaintiff was using marijuana at the time of the interview, the other possible inference was that he was actually confident that he would pass the drug test. In the absence of evidence, at this stage in the litigation, that the plaintiff was “currently engaging” in the use of illegal drugs during the interview, the court rejected the employer’s argument that the plaintiff was not a qualified individual. Notably, although the district court granted the plaintiff leave to amend his complaint to identify the reasonable accommodation he either did request or would have requested from the employer, the court added that “the accommodation may not be the use of marijuana.”

Notably, the decision was brought under the ADA rather than a state disability discrimination statute in a state with a medical marijuana law. Whether the decision would have turned out differently in such a case is unclear. Regardless, the decision is a reminder to all employers that any adverse decision against an applicant or an employee based on marijuana use should be based on actual evidence of use or impairment, whether that be an admission of use or a positive test result, neither of which were present in the Hawaii case. Regardless, even if an applicant or employee tests positive for marijuana or admits to actual use, employers still must be mindful of state statutes and court decisions that might restrict an employer’s ability to rely on such information or require the employer to engage in an interactive process to determine whether a reasonable accommodation might exist for the individual’s underlying medical condition under state disability laws.