Before moving on to the blog entry of the week, a couple of housekeeping matters. First, one of the things that I do is act as a FINRA arbitrator. There is a final hearing all of next week. The final hearing will be conducted virtually over zoom. I have been absolutely amazed with how FINRA has accommodated my deafness over time. That isn’t always the case with ADR entities or with anyone else as y’all know. It is a real pleasure to be a part of FINRA. So, there will not be a blog entry next week as the hearing is expected to go Monday through Friday during working hours with a break for lunch etc. Second, I do want to say that my thoughts and wishes go out to the victims of the recent Atlanta and Colorado shootings.

 

Turning to the cases of the day, one from the District Court in Connecticut and the other from the Eastern District of Louisiana, they both deal with CBD/marijuana. As usual, the blog entry is divided into categories and they are: Huber facts; Huber reasoning; Huber thoughts/takeaways; Eccleston facts; Eccleston reasoning; and Eccleston thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Huber v. Blue Cross and Blue Shield of Florida, Inc.185185194201202202207204

 

Huber Facts

 

Plaintiff suffered from severe migraines and nothing seemed to work with respect to treating it. Eventually, her primary care physician recommended using non-psychoactive CBD oil to help manage her migraines as the other medications failed to work. After starting on the CBD oil, her work performance improved and she received five out of five performance ratings for the years 2017 and 2018, reduce the time that she had to take for FMLA leave, and even received a promotion in June 2019. In July 2019, her supervisor held a team meeting where he informed the plaintiff that she had to take a drug test. The same day she spoke with her supervisor separately and reminded him of her disability as well as the various medications she took due to her disability, including CBD oil. Her supervisor told her she would not lose her job based upon the results of the drug screen, to play along, and that the recommendation from her doctor for the CBD oil would alleviate any concerns with the drug test results. Plaintiff did exactly that.

 

After the drug test results came back, the employee relations consultant for BCBS called plaintiff and told her that they received the drug test and that her job was on the line. She then emailed that individual a copy of her Dr.’s recommendation of the CBD oil and a letter from her doctor regarding the use of CBD oil for her disability. The person said that the information she supplied was very thorough and assured her that her job was safe. That did not turn out to be the case as she was terminated from her employment with BCBS on July 30, 2019. She filed an EEOC charge and then brought suit alleging violations of both the ADA and the Louisiana employment discrimination law because of terminating her on account of her disability and the failure to accommodate her by not allowing her to use CBD oil to control her migraines.

 

II

Huber Reasoning

 

  1. Plaintiff alleged that she is disabled due to unmanageable migraines, that BCBS was aware of plaintiff’s disability since at least 2006, and that BCBS regarded her disabled because it granted the requested accommodations in the form of FMLA leave due to her migraines. She also alleged that she was qualified for the job because she could perform the job with or without reasonable accommodations. She also alleged that her work performance actually improved after her physician prescribed the non-psychoactive CBD oil. All of that works for purposes of surviving a motion to dismiss.
  2. The retaliation claim fails because her allegations are conclusory.
  3. With respect to her interference claim, it survives a motion to dismiss because of the following allegations that a court must assume as true for purposes of a motion to dismiss: 1) plaintiff engaged in a protected activity by seeking an accommodation requesting that she be allowed to use hemp derived CBD oil to manage her migraines; 2) BCBS allegedly interfered with her rights by informing her that her job was on the line when they received her drug screen results when in response to her email documenting her CBD oil use, a BCBS employee had previously informed her that her documentation was very thorough, her job was safe, and that her physician recommended use of CBD oil would alleviate any concerns with her drug test; 3) despite those communications she was terminated; 4) enforcing a policy in a way that penalizes an employee with a disability for availing herself of a reasonable accommodation for disability interferes with the employee’s ADA rights.
  4. For the same reasons as her disability discrimination claim survives, including a separate failure to accommodate claim, her claims under Louisiana law also survive a motion to dismiss.
  5. Defendant’s motion for summary judgment gets denied because summary judgment is premature and fact issues exist as to whether plaintiff violated her employer’s drug policy.

 

III

Huber Thoughts/Takeaways

 

  1. This case involves CBD oil and not marijuana, which is psychoactive.
  2. Whenever you are alleging a claim of disability discrimination on the plaintiff side, pretending that notice pleading doesn’t exist is a good idea. You definitely want to put in enough facts to put the defense and the court on notice as to exactly what is going on. Leave as little room for assumptions as possible.
  3. An interference claim can arise where an employee seeks reasonable accommodations, another employee assures that person that things will be okay, and then a third employee gets in the way.
  4. The jurisdictions are divided as to whether a failure to accommodate claim is a separate cause of action. Some Circuits say that it is while others say it is all part of disability discrimination. State laws, such as Louisiana, may have a specific failure to accommodate claim built into their scheme. So, you definitely want to check your jurisdiction.

 

 

Eccleston v. The City of Waterbury186186195202203203208205

 

IV

Eccleston Facts

 

Plaintiff was hired as a firefighter by the city of Waterbury in June 1995 and he eventually received the rank of Capt. Following an allegation of misconduct outside the workplace, he signs a last chance agreement and accepts a demotion to the rank of Lieut. That agreement specifies that instead of termination for the alleged misconduct, he gets placed on probation subject to mandatory random drug testing and could be subject to termination if he tested positive for a controlled substance.

 

In 2017, plaintiff was diagnosed with PTSD stemming from experiences he suffered during his lengthy career as a firefighter. On February 16, 2017, while speaking at a public hearing on public safety and security the mayor allegedly made discriminatory comments expressing disdain for individuals with PTSD and suggesting that they should not be employed as first responders.

 

At some point after he was diagnosed with PTSD, plaintiff spoke to his battalion chief and told him he was considering applying for a Connecticut registration certificate for medical marijuana. He was told by firefighting personnel it was not a good idea but nevertheless went ahead and obtained a Connecticut registration certificate for medical marijuana. Of course, he eventually winds up taking a drug test as part of the random testing regimen and the test is positive. Without disclosing his PTSD, plaintiff said that he was a registered user of medical marijuana and had obtained a valid registration card from the state of Connecticut. He was also advised by the chief of the Waterbury fire department to obtain a fitness for duty evaluation from a doctor and that he would be placed on light duty status. However, later that day the plaintiff was hand-delivered a letter informing him that instead of being placed on light duty status, he would be placed on unpaid administrative leave pending the investigation. He did obtain the letter from his physician confirming plaintiff’s fitness for duty with no restrictions. Even so, he gets terminated and bring suit after receiving his right to sue letter.

 

V

Eccleston Court’s Reasoning

 

  1. To state a claim for discriminatory discharge a plaintiff has to allege: 1) the defendant is an entity covered by the ADA; 2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; 3) plaintiff was qualified to perform the essential functions of the job with or without reasonable accommodation; and 4) plaintiff was terminated because of a disability.
  2. McDonnell Douglas burden shifting scheme applies.
  3. 42 U.S.C. §12114187187196203204204209206 state that a qualified individual with a disability does not include any employee or applicant currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use.
  4. The ADA defines illegal drug use by referencing the controlled substances act, which classifies marijuana as a schedule I illegal substance based on its high potential for abuse and lack of currently accepted medical use in treatment. 42 U.S.C. §12111188188197204205205210207(6), 21 U.S.C. §812189189198205206206211208()(1)(a)-(c).
  5. The ADA at 42 U.S.C. §12111(6) also says that the term illegal use of drugs does not include the use of a drug taken under supervision by a licensed healthcare professional or where other use is authorized by the controlled substances act.
  6. While it is true that the ADA provides a clear exception for drug use under the supervision of a physician, federal law still explicitly prohibits the use, possession, and distribution of marijuana even for medical purposes.
  7. While one court has concluded that the ADA does not preempt state laws protecting employees from discrimination on the basis of medical marijuana and therefore states are free to provide those protections, that same court suggested in dicta that the ADA itself cannot be interpreted to provide protection against that same discrimination. That is, doctor supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception. Other district courts in other Circuits have reached the same conclusion.
  8. Courts have also rejected the argument that discrimination on the basis of medical marijuana reflects discrimination on the basis of the disability that the medical marijuana is used to treat. To read the ADA any other way, places the ADA in direct tension with the clear provisions of the controlled substances abuse act, which is the statute the ADA relies upon to define the term illegal drug use. So, an individual who uses medical marijuana cannot state a prima facie case under the ADA for discrimination on the basis of medical marijuana use because medical marijuana does not fit within the supervised use exception of the ADA and remains illegal under federal law. This is the case even where a plaintiff can establish the drug usage link to an underlying disability recognized by the ADA and taken under the supervision of a physician.
  9. The use of medical marijuana does not waive protections of the ADA altogether because the specific text of 42 U.S.C. §12114190190199206207207212209 provide that a qualified individual does not include an employee engaging in the illegal use of drugs when the covered entity acts on the basis of that use (emphasis mine). That is, the ADA does not protect medical marijuana users who claim to face discrimination on the basis of that marijuana use. Stated another way, plaintiff could still have an ADA discrimination claim if he could plausibly allege that he was discriminated against in the terms and conditions of employment on the basis of PTSD rather than on his medical marijuana use.
  10. Plaintiff does not have any allegations in his complaint that his employer was even aware of his PTSD diagnosis only that they should have been aware of it because of his medical marijuana registration certificate being presented to human resources.
  11. No allegations exist that the card specifically referenced a diagnosis of PTSD or even listed the conditions for establishing eligibility of such a registration card. Further, no allegations exist that he made anyone else aware of the underlying illness that prompted him to obtain the card.
  12. While he does allege that the mayor was aware of his medical marijuana registration certificate, there are no allegations that the mayor was aware of a diagnosis of PTSD.
  13. The ADA has no exception for illegal drug use caused by an underlying disability and instead explicitly allows an employer to drug test employees and terminate their employment on the basis of illegal drug use without violating the ADA.
  14. The failure to accommodate claim fails because using marijuana, which is a schedule I illegal substance, is not a reasonable accommodation.
  15. The mere suggestion that the plaintiff might get a medical marijuana card is not sufficient to establish that his employer was aware of his need for an accommodation and needed to initiate the interactive process.
  16. The ADA provides no protection from retaliation for an employee currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use.

 

VI

 

Eccleston Thoughts/Takeaways

 

  1. Your state law can make a big difference in these cases. See this blog entry for example191191200207208208213210.
  2. CBD oil and marijuana are not the same thing and that distinction can matter a lot.
  3. Disclosure of a disability is always a very personal call and it depends upon a variety of factors. In general, on the plaintiff side, early disclosure is always better.
  4. While magic words are not required, a person with a disability does need to put his or her employer on notice that a disability is involved and accommodations are needed. Even though magic words are not required, there still has to be notice. The notice in this case was not sufficient. You can see the difference in notice when you compare our first case, Huber, with Eccleston.
  5. Just because under this decision and employer gets a get out of jail free card with respect to acting on the basis of marijuana use, the employer is going to want to be careful that they are also not acting on the basis of the underlying disability. Where they are acting on the basis of the underlying disability, there is potential liability exposure, especially in light of how causation has changed per Bostock, which we discussed here192192201208209209214211.
  6. The controlled substances act, which says that marijuana has no medical use, may need to be updated. Regardless of what you may think of marijuana addictive use qualities, there are certainly many many people using marijuana for medical use. It will be interesting to see whether we see any changes in controlled substances act in the future.

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