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Pharmacy Times
The court also addressed the employer’s basis for ordering a drug test.
A teaching assistant (TA) working with preschool-aged students called a child by an incorrect name. When confronted, she said she uses medicinal marijuana, was currently under its influence, and her “head is not just right from it yet.”
When the TA was hired, she held a state-issued medicinal marijuana card. However, the employer had written policies that explicitly prohibited employees from working while under the influence of any drug or alcohol. The employee did not disclose her use of medicinal marijuana.
Joseph L. Fink III, JD, DSc (Hon), BSPharm, FAPhA, is a professor emeritus of pharmacy law and policy and former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.
The supervising teacher was concerned about the welfare of the children in her class, so she reported the situation to her supervisor. An investigation was initiated, leading to the employee disclosing that she used medicinal marijuana to treat a health condition. Further, she reported that she had arrived at work that day despite ingesting too much medicinal marijuana. The TA was suspended without pay and instructed to undergo a drug test for marijuana, the results of which were negative. It was noteworthy, however, that 1 week had elapsed between the classroom incident and the drug test.
At the conclusion of the investigation, the TA was terminated based on the fact that she had admitted being under the influence of marijuana while at work. That was a clear violation of the drug and alcohol policy in the employee handbook.
The employee filed a lawsuit against the employer, alleging violation of 2 state statutes: the Palliative Use of Marijuana Act (PUMA) and a state statute restricting use of urinalysis drug testing.
The employer filed a motion with the trial court for summary judgment, asserting that there was no genuine dispute about any material fact and that it was entitled to judgment as a matter of law. The judge reviewed the information presented and ruled that the employee had failed to produce any evidence that she was terminated solely for being prescribed medicinal marijuana. The judge also ruled that the employer did have reasonable suspicion for ordering the drug test.
The employee disagreed with that ruling, filing an appeal with the state court of appeals, which affirmed the decision of the trial court judge.
The decision expressed support for employers’ right to prohibit the use of marijuana in the workplace, even if the employee has met the criteria to be certified to use the substance for medicinal purposes. The court’s interpretation of the PUMA statute was that the employee challenging a termination must show that the employer’s termination decision occurred solely because the employee had a prescription for the substance. In this instance, the situation also included the TA being under the influence while at work and acknowledging that her conduct placed children under her care at risk, so those additional factors supported the termination. It was noteworthy that the employer had already suspended her for this concerning behavior while around students before it was made aware that she was an authorized user of medicinal marijuana.
