The Ninth Circuit Court of Appeals refused to dismiss a medical marijuana-using applicant’s disability discrimination claim because he did not state that he actually used marijuana at the time of his interview — even though he provided a copy of his medical marijuana card – and was not subjected to a drug test. Kamakeeaina v. Armstrong Produce, Ltd., 2019 U.S. Dist. LEXIS 50863 (9^th Cir. March 22, 2019).

The plaintiff applied for a job as a Receiver/Forklift Operator with Armstrong Produce but was not hired. He alleged that he suffered from post-traumatic stress disorder and depression. After he received a conditional offer of employment, he was advised that he was required to pass an on-site drug test. He disclosed to the Human Resources Director that he was registered under Hawaii’s Medical Cannabis Program and presented a copy of his medical marijuana certification card. The H.R. Director stated that if he tested positive on the drug test, the employment offer would be withdrawn. Plaintiff allegedly stated that he understood that the job offer would be “taken off the table” if he failed the drug test. Subsequently, the job offer was withdrawn even though the drug test was not conducted.

Plaintiff asserted claims of age discrimination and disability discrimination, including the denial of a reasonable accommodation, and the employer moved to dismiss the complaint.

The employer argued that the disability discrimination claim should be dismissed because of Plaintiff’s use of marijuana. The Court denied the motion to dismiss on this basis, given that Plaintiff did not fail a drug test and did not admit to marijuana use. The employer believed that Plaintiff’s acknowledgment that the job offer would be “taken off the table” if he tested positive, constituted an admission that he would test positive on the drug test. But the parties disputed the implications of Plaintiff’s additional statement during the interview that he “wanted to be straight-up from the beginning and if I were to get the job, it’ll be a way easier transition for everyone involved.” The Court concluded that this statement indicated that Plaintiff did ­not think he would fail the drug test. Moreover, no drug test was conducted. There was no evidence, therefore, that Plaintiff actually had used marijuana.

The Court dismissed the failure to accommodate claim because it was not clear what accommodation was sought by Plaintiff. However, the Court gave Plaintiff leave to replead this claim.

The lesson for employers is this: although it may seem reasonable to assume that an applicant who possesses a medical marijuana card actually uses marijuana, the adverse employment action should be based on something more, such as a positive drug test result or an admission of drug use (assuming, of course, that applicable state law does not prohibit discrimination against medical marijuana users).