On behalf of your company, you hire a new employee. As part of the hiring process, the new employee must complete a satisfactory physical examination, including passing a drug test. During the physical exam, the new employee discloses that she takes prescribed medical marijuana to control her epilepsy. As expected, her drug screen reveals high levels of marijuana. Upon review of the failed drug test, you terminate the new employee for violating the company's drug-free workplace policy. Although you are sad to lose this new employee, from an employment and business standpoint, this was an easy decision, right?

Wrong. The Pines of Clarkston, Inc., an assisted living facility located in Michigan, was faced with this same scenario, and opted to terminate a new hire when her drug screen revealed marijuana use. The Pines is now embroiled in litigation with the EEOC on behalf of the new hire, Jamie Holden, which claims that the termination was not related to medical marijuana use, but instead because Holden suffers from epilepsy, grounds that are in violation of the ADA and Michigan's Persons with Disabilities Civil Rights Act.

The EEOC and Holden take the position that although The Pines now claims Holden's termination arose from her medical marijuana use, that is pretext for the actual reason: that she did not disclose she had epilepsy during her interview processes, and for actually having epilepsy. The EEOC and Holden argue that the mere fact that Holden uses medical marijuana cannot protect The Pines' decision to terminate her, if that decision was made for an inappropriate reason – i.e., because she has epilepsy.

In a recent filing, the EEOC cites James v. City of Costa Mesa, 700 F.3d 394, 397 n.3 (9th Cir. 2012), which found as follows:

We do not hold, as the dissent states, that 'medical marijuana users are not protected by the ADA in any circumstance.' We hold instead that the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use. See 42 U.S.C. § 12210(a) (the illegal drug use exclusion applies only "when the covered entity acts on the basis of such use"). As the Equal Employment Opportunity Commission has explained, a person who alleges disability based on one of the excluded conditions [such as current use of illegal drugs or compulsive gambling, see 42 U.S.C. § 12211(b)(2),] is not an individual with a disability under the ADA. Note, however, that a person who has one of these conditions is an individual with a disability if (s)he has another condition that rises to the level of a disability. See House Education and Labor Report at 142. Thus, a compulsive gambler who has a heart impairment that substantially limits his/her major life activities is an individual with a disability. Although compulsive gambling is not a disability, the individual's heart impairment is a disability.

See Brief for Plaintiff, EEOC v. The Pines of Clarkston, Inc., Civil Action No. 2:13-cv-14076 (E.D. Mi. February 6, 2015), ECF No. 35, p. 16.

Applying this same logic, the EEOC argues that the mere fact that Holden uses medical marijuana cannot act as a bar to her disability claims if it can be shown that The Pines did not fire her for the medical marijuana use. The EEOC argues that based on statements made in The Pines' position statement, and other evidence, an issue of fact exists regarding whether The Pines terminated Holden because she failed the drug test, or because of her epilepsy.

For its part, The Pines maintains that it has a zero tolerance drug policy, that Holden violated this policy by using medical marijuana and that she was terminated on this basis. Accordingly, it argues that summary judgment should be granted in its favor.

The Pines' Motion for Summary Judgment is currently pending, so we do not yet know which way the Court will rule on this issue. In the interim, what can we take away from this case?

First, in its response to The Pines' Motion for Summary Judgment, the EEOC referenced The Pines' Position Statement on numerous occasions, and attached a copy as an Exhibit. This is an excellent reminder to be cautious when preparing Position Statements, and mindful that the positions take in that document may be used in later proceedings.

Second, the EEOC's focus in this case seems to move away from whether Holden was engaged in legalized marijuana use, and focuses instead on whether marijuana use is a red herring (i.e., pretext) for firing Holden based on her epilepsy. This is a shift in the typical case involving medical marijuana, even in states like Michigan that allow for medical marijuana use. Generally those cases focus on whether the marijuana was prescribed, if the use was proper, whether it would affect job duties, etc. Perhaps this trend evidences that medical marijuana use is becoming more mainstream. If so, and especially in states where medical marijuana has been legalized, employers need to be clear that the basis for termination is for drug use in violation of the company's policy, and make sure the policy is consistently enforced.

Third, although The Pines has a drug-free workplace policy, the EEOC points to evidence, including statements made in the Position Statement, that the reason given for termination was not related to Holden's medical marijuana use. It remains to be seen how the Court will rule, but these bits of evidence may create a sufficient issue of fact that should be decided by a jury. It is very important to remember to be clear when providing the reasons for termination, and consistent with those reasons following the termination.