Reasonable Accommodation

We’ve talked about this before.  There is an ongoing tension between state laws decriminalizing or legalizing marijuana for medicinal purposes and federal law, under which marijuana is still classified as an illegal Schedule I Controlled Dangerous Substance.  Back in July, we wrote in our blog that the FDA had recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy.  As we stated in that blog post, this approval by the FDA did not necessarily signify that the federal government would soon reclassify marijuana, removing it from the list of Schedule 1 drugs because it has a medical purpose.
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I’m embarrassed to admit that I used to be one of those people who hate dogs.  How could anyone dislike an adorable bundle of fur that excitedly greets you each time you walk in the door, you ask?  I know, it’s crazy.  Fortunately, I’ve come to my senses and now gush over any dog I see – anytime, anywhere.  So this begs the question: will I ever be able to see a dog every day while I’m at work?
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Recently, I blogged about a press release from the Equal Employment Opportunity Commission in which it misstated the law on post-offer medical examinations under the Americans with Disabilities Act. I was hoping that was a one-off mistake. But another recent EEOC press release has given me some concern, because I believe that it again misleads employers on their obligations under the ADA – this time with regard to associational discrimination.
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The FDA recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy.  Does this mean that the federal government is saying that people can now begin using a marijuana-based drug treatment – including employees in the workplace? Not so fast.
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This week, the Equal Employment Opportunity Commission trumpeted a $4.4 million settlement in a lawsuit in which the EEOC claimed that Amsted Rail had violated the Americans with Disabilities Act by disqualifying applicants based on the results of a test for carpal tunnel syndrome. In the EEOC’s press release, Andrea G. Baran, regional attorney for the EEOC’s St Louis District Office, was quoted as follows: “While it is lawful under some circumstances for employers to conduct limited medical exams after making conditional offers to job applicants, it is not ‘anything goes’.” Wait, what? Actually, I thought it was “anything goes” at that point!
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So after a hiatus of many years, the Department of Labor has once again begun issuing opinion letters, which are responses to a particular employer’s situation that offer guidance to all employers on specific issues under the Fair Labor Standards Act. This is quite exciting for employment law nerds like me – and one of these letters highlighted an interesting interaction between the FLSA and disability laws like the Americans with Disabilities Act and analogous state laws. (OK, I know that you’re on the edge of your seat now…)
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As an avid practitioner of yoga (much to my surprise – I always assumed I was too type A for inner focus and meditation), I was highly entertained by a recent case in which an employee requested to attend a yoga class as a reasonable accommodation under the Americans with Disabilities Act. Now, in my 25 years of practice as an employment attorney, I have seen many interesting requests for accommodation, but this was a new one for me.
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Only days after California started selling recreational pot, which had been legalized under state law, CNN reported that Attorney General Jeff Sessions will announce that he is rescinding Obama-era guidance that had set forth a policy of federal non-interference with state legalization laws. This action further complicates an already confusing situation for employers struggling with how to navigate the battling federal and state laws on the workplace impact of marijuana use.
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Many employers have drug-free workplace policies that require employees to disclose if they are taking prescription (and perhaps over-the-counter drugs) that could affect their ability to perform the essential functions of their job safely and/or effectively. This requirement seems pretty sensible, right? But according to the Equal Employment Opportunity Commission, it violates the Americans with Disabilities Act!
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The consensus amongst employers in the recent past has been that, because federal law categorizes marijuana as an illegal substance, employers could take adverse action against individuals who tested positive for marijuana (refusing to hire, disciplining or terminating). In that same vein, because marijuana was illegal under federal law, the thought was that an employer had no obligation to provide accommodations to workplace policies, such as drug testing policies, to individuals who tested positive because of medical marijuana use.  (Except in Nevada, because it is the only U.S. jurisdiction whose statute requires accommodations for medical marijuana users).  However, a recent case, Barbuto v. Advantage Sales & Mktg., LLC, has seemingly caused the traditional line of thinking to go up in smoke.
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