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Lawful to fire employee who admittedly self-medicated with marijuana

By Lorene D. Park, J.D.

An engineer who tested positive in a random drug test, was required to take FMLA leave for treatment, and was then fired under a zero-tolerance policy, could not show violations of the ADA, FMLA, or state law.

Because an employee could not show the foot pain for which he admittedly self-medicated with marijuana was a “disability” at the time he was fired under a zero-tolerance policy, and he could not show pretext, his disability discriminations claim failed. Also granting summary judgment against his retaliation claims under the ADA, FMLA, and state law, the federal district court in Pennsylvania found it significant that he had not invoked his FMLA rights when he received drug treatment because he was required by the employer to take leave for that purpose. Nor could the employee show a causal link between his prior periods of FMLA leave or requests for light duty after foot surgery (Parrotta v. PECO Energy Co., January 31, 2019, Kearney, M.).

Foot surgery. The employee was hired as a senior engineer in early 2015. At some point, he was diagnosed with a second plantar plate tear in his left foot. His podiatrist told a PECO nurse of his ongoing treatment and requested work restrictions as he could not climb ladders, among other things. At the end of October, the employee took FMLA leave for surgery. His doctor released him to light duty December 5, 2016, informing the employee’s supervisor and an HR rep that restrictions included: “limited walking, may need use of one crutch to walk with cast or boot, no stairs or ladders.” The employee was accommodated. By March 3, 2017, he told the occupational nurse he could resume “full duty” with only “follow up” with his doctor. The doctor provided a release to “full duty” and, on the medications part of the treatment plan form, wrote “N/A.”

Failed drug test, referred to EAP. Thereafter, the employee was randomly selected for a drug test on May 15, 2017. A fitness-for-duty manager reported that he tested positive and directed that he “must be removed from duty and directed to contact the Employee Assistance Program (EAP) within 24 hours to schedule a substance abuse evaluation. The evaluation will determine what assistance, education and/or treatment [he] will require.”

An HR rep wrote to the employee, stating that the positive test violated the drug and alcohol policy, standards of conduct, and DOT regulations. He was relieved of his duties and told not to return until advised to do so. He was put on FMLA leave and directed to contact the EAP within 24 hours, to complete the treatment program, and to pass a return-to-duty drug and alcohol test before returning.

Completed EAP. Under the drug policy, “the first positive drug test will result in termination of employment” for exempt employees. The policy defines “drugs” as any “chemical substance whose manufacture, use, possession, purchase, or sale is prohibited by law.” Though marijuana use is prohibited by law, PECO did not automatically fire the employee. He began the EAP on May 19 and on August 2, after he completed the program, the third-party company running the EAP recommended he “be considered for return to work.” His FMLA leave ended on August 12.

Fact-finding hearing. On August 16, a fact-finding hearing was held to determine if the employee “had any legitimate dispute of the results of the positive random drug test” and whether he could return to work. He reported that he had marijuana in his system for pain and he reference his foot surgery from October 2016. He reported that there was “significant scar tissue and the wound was not healing correctly.” He said he was consulting with a Delaware doctor for medicinal certification and acknowledged this was not legal in Pennsylvania, where he was living. He also admitted he obtained the marijuana on his own.

Termination, lawsuit. PECO representatives held a consensus call to discuss the drug test and decided to fire the employee. The vice president of HR testified that his medical condition and leave was not discussed on the call. Thereafter, the employee took a job with another company, but he was fired because the company was a PECO contractor and was informed the employee could not work on PECO projects. The employee filed suit for disability discrimination under the ADA and state law, and retaliation under the ADA, FMLA, and state law.

No disability, so no discrimination. Granting summary judgment on the discrimination claims, the court found that the employee’s foot condition was not a disability when he was fired. He claimed that he suffered foot pain but did not provide evidence that this substantially limited him in a major life activity at the time. Moreover, seven months before his termination, his doctor had cleared him to “full duty” with no restrictions and no prescribed medications or treatments.

Nor did the employee raise a triable issue showing a record of impairment; a short-term absence was not enough. And though he claimed PECO regarded him as disabled when it fired him, no reasonable fact-finder would agree because his doctor cleared him seven months earlier.

No pretext. Even assuming a prima facie case, the employee failed to show the zero-tolerance drug policy was pretextual. The fact that PECO waited 107 days after the positive test to fire him did not make the reason unbelievable, and testimony indicated PECO must still “go through a process” before firing someone for a positive drug test, including the EAP, factfinding, and consensus call. And while the employee argued that PECO had discretion to not fire him, that was no help because he couldn’t show PECO treated nondisabled individuals more favorably. In the previous five years, PECO fired three other exempt employees after their first positive tests.

Retaliation claims fail too. While it was undisputed the employee engaged in protected activity when he requested disability leave and light duty in late 2016, he could not show a causal link to his termination in August 2017. He noted the temporal proximity to his recent FMLA leave for the EAP program, but he had not requested that FMLA leave, he was required to take it due to his positive drug test. Thus, his recent FMLA leave was not relevant to his ADA and state-law retaliation claims. His FMLA retaliation claim also failed because he did not invoke his rights under the Act for the latest required leave, and he could not show a causal connection to his prior periods of leave. His inability to show pretext also doomed his retaliation claims.