Man tests positive for marijuana, blames it on his lip balm, and doubles down with an ADA lawsuit.

Yesterday, I wrote about how the DEA’s move to ease restrictions on marijuana would change the ADA landscape for employers by requiring accommodations for employees with disabilities who use medical cannabis to treat.

For now, however, marijuana remains a Schedule One drug. So, the Americans with Disabilities Act does not protect individuals with actual disabilities who lose their jobs for testing positive because the ADA does not protect individuals engaging in “the illegal use of drugs” within the meaning of the statute.

But what if the employee does not have an actual disability?

What if, instead, the employee claims that the employer perceived him as being disabled?

For example, in this recent Sixth Circuit decision, the defendant fired the plaintiff after he tested positive for marijuana during a random drug test. The plaintiff blamed the positive result on hemp oil lip balm that he applied immediately before submitting to the drug test.

The plaintiff did not have an actual disability. That is, he did not have a physical or mental impairment that substantially limits one or more major life activities. Instead, he alleged that the defendant had fired him because it had “regarded him” as being “disabled”—specifically, that it had “erroneously regarded” him as a drug user and thus having a disability.

Huh?

I’ll try to explain.

The ADA protects someone who is regarded by others as having a disability, even if the individual does not actually have a disability. Therefore, an employer cannot take adverse action against someone because it perceives that individual as having a disability.

The plaintiff argued that he was “disabled” under the ADA because the defendant wrongly regarded him as a “user of illegal marijuana.” However, the plaintiff’s argument suffered from a fatal flaw: zero evidence whatsoever that the defendant “perceived” him as having a “physical or mental impairment,” as opposed to perceiving him simply as a person who had failed a drug test.

Yes, the ADA does include an exception for an individual whom an employer erroneously regards as engaging in such illegal drug use but is not engaging in such use.

“But,” noted the Sixth Circuit, “that provision does not say that every such person is therefore included in the Act’s definition of a ‘qualified individual with a disability.'” Instead, an individual must show that he is a qualified individual with a disability. The plaintiff here lacked that evidence.

While I don’t fully understand why the plaintiff appealed the lower court’s decision to enter summary judgment in favor of the employer, I’m glad he did.

Otherwise, I would have one less employment law oddity to write about.