An employer cannot assume that a medical marijuana cardholder uses marijuana according to the U.S. District Court for the District of Hawaii in Kamakeeaina v. Armstrong Produce, Ltd.

Background

Buddy Kamakeeaina alleged that his conditional offer of employment from Armstrong Produce, Ltd. was withdrawn due to his disability (PTSD and depression), in violation of the Americans with Disabilities Act (“ADA”).

Armstrong made Kamakeeaina a conditional offer of employment, contingent on him passing an on-site drug test.  At a subsequent interview, Kamakeeaina told Armstrong’s Human Resources Director that he was registered under Hawaii’s Medical Cannabis Program.  The HR Director told him that if his drug test was positive, Armstrong would need to withdraw the employment offer, to which Kamakeeaina responded that he was “prepared to have the offer taken off the table.”  Without administering a drug test, Armstrong withdrew Kamakeeaina’s employment offer.

Lawsuit

Kamakeeaina alleged various claims against Armstrong, including a failure-to-hire claim under the ADA.  Armstrong asked the Court to dismiss the failure-to-hire claim on the basis that Kamakeeaina was not a qualified individual with a disability for purposes of the ADA because of his drug use.  The Court agreed that a person cannot be a qualified individual with a disability if they are engaging in the use of drugs.  The Court, however, noted that Kamakeeaina did not fail the drug test and never admitted that he was using marijuana.  Thus, there was no evidence that Kamakeeaina actually used marijuana.  Armstrong merely inferred he was using drugs based on his comments.  As such, the Court allowed Kamakeeaina’s failure-to-hire claim to move forward.

Takeaway

Employers cannot assume that an applicant who possesses a medical marijuana card actually uses marijuana.  Rather, if you are not going to hire an applicant because of drug use, your decision should be based on that person’s failure of a drug test or affirmative declaration that he or she uses drugs.