by Jackson Lewis

There have been a number of noteworthy developments in drug testing law since the June, 2005, decision by the U. S. Supreme Court upholding the power of the federal government to seize and destroy "medical marijuana." Overall, the trend continues to be positive for the employer community.

Termination for Drug Policy Violation Trumps FMLA Request

An employer can terminate an employee for violating a drug abuse prevention policy, even when the employee has requested leave under the federal Family and Medical Leave Act, provided the employer's actions are consistent with how it would treat other policy violations. Hull v. Stoughton Trailers LLC, 7th Cir., No. 05-22-5, 4/26/06.

The employee was fired for violating the company's drug abuse prevention policy and for poor performance 17 days after he had requested FMLA leave. He had not been tested for drugs, and the company normally did not terminate employees for first offenses. Nonetheless, the court upheld the termination because the employee had failed to show that he had been treated more harshly under the policy than other similarly situated employees.

"Medical Marijuana" Not an Accommodation Under Disability Law

The Oregon Supreme Court unanimously ruled that a former millwright, who claimed to suffer from leg spasms and used marijuana at home for medicinal purposes, did not have a disability under Oregon law that required accommodation by his employer. Washburn v. Columbia Forest Products, Inc., Or., No. S52254, 5/4/06.

The employee had failed workplace drug tests repeatedly and was subsequently fired. The court found the employee was not disabled within the meaning of the state disability law and said he had alternatives, including readily available prescription medications, to address his sleeping problem.

Denial of Work Comp Benefits to Employees With Positive Tests

The Arizona Supreme Court declared unconstitutional two state laws barring recovery of workers' compensation benefits to injured employees who fail a drug test or are injured due to alcohol use, unless they are able to prove that use of the substance did not contribute to the accident and injury. Grammatico v. Industrial Commission, 117 P.3d 786, AZ Sup. Ct., 8/10/05. The two laws conditioned eligibility for benefits on the absence of "fault" (due in whole or part to use of drugs or alcohol), a condition prohibited by the state constitution.