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Marijuana Use: A Serious Health Condition?
Ashlee Brennan

Marijuana Use: A Serious Health Condition?

With many states passing laws protecting medical and recreational use of marijuana, employers are often left in the dark when determining whether to take employment action against an employee who may qualify for job protection. ReedGroup’s compliance team reported on these legislative changes and their impact to employee leave and disability in our white paper, “Clearing the Haze: How State Marijuana Laws Impact Leave and Disability.”

A recent court case from the second circuit assists employers in this dilemma regarding the Family and Medical Leave Act (FMLA). Robert Carle, hired in 2013 as a foreman for Red Thread Spaces, LLC (Red Thread), claims that his employer terminated his employment in violation of the FMLA. Red Thread argued that Carle was not protected by the FMLA and his termination was due to a failed drug test. Carle’s duties included driving delivery vehicles, which qualified his position as “safety-sensitive” by the Connecticut Department of Labor. As such, Carle was subject to random urinalysis drug testing under Red Thread’s Anti-Drug and Alcohol Misuse Policy (“policy”).

The policy also required any safety-sensitive employee testing positive for drug use or alcohol misuse to be immediately suspended without pay and evaluated by a substance abuse professional. Based on the evaluation, a recommendation could be made for substance abuse treatment or a direction to return to work upon the passing of a drug test. The policy further stated that any employee producing a positive drug screen more than one time in a 36-month period would risk immediate termination.

A reported avid marijuana user, Carle unsurprisingly failed a random drug test in November 2013. Per the policy, Carle was placed on unpaid suspension and evaluated by a substance abuse professional who concluded no substance abuse treatment was needed. Essentially, the employee was not affected by substance abuse and the examiner cleared him to return to work once he could pass a drug test. Carle subsequently failed the return-to-work drug test and was directed to take another to be restored to his position. The second return-to-work test proved altered and thus Carle was ordered to undergo a third test that same day. Carle never showed up for the third test nor did he ever provide a clean test to return to work; therefore, Red Thread terminated his employment.

Carle claims Red Thread interfered with his right to take FMLA by terminating him. For Carle to qualify for protection under the FMLA, he needed to demonstrate that he had a serious health condition within the Act. Under the FMLA, “[s]ubstance abuse may be a serious health condition if the conditions of §§ 825.113 through 825.115 are met,” and if the leave is “taken for treatment for substance abuse by a health care provider….” 29 C.F.R. § 825.119(a). The conditions of §§ 825.113 through 825.115 are met if the substance abuse or treatment resulted in an employee’s incapacity (inability to work “due to the serious health condition”) for more than three days and treatment by a health care provider on at least one occasion, coupled with a regimen of continuing treatment under the supervision of a health care provider.

Here, the employee failed to receive any treatment for substance abuse and thus failed to establish he had a serious health condition under the FMLA. The court held that the “mere presence of marijuana does not constitute substance abuse.” Further, Carle’s inability to work was not due to a serious health condition, but rather because he couldn’t pass the drug test. The court affirmed that had Carle received substance abuse treatment, he would have indeed qualified for FMLA leave; however, the only activity Carle participated in during his suspension was waiting for time to pass until his body could rid itself of marijuana.

In summary, this case reminds us that substance abuse treatment under the FMLA “does not prevent an employer from taking employment action against an employee…[on account of] an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, [and] that pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.” 29 C.F.R. § 825.119(b).

Tread lightly when taking employment actions with those who may suffer from substance abuse disorder, and remember to refer to ReedGroup’s white paper for any local or state laws that may provide further protections. For assistance with your leave of absence challenges, check out our solutions here!