Drug Testing Case Involving Sudafed May Foreshadow Decisions for Medical Marijuana

Richard Turner was a crane operator for Phillips 66.  On April 24, 2017, he was selected for a random drug test under Phillips 66’s drug and alcohol testing policy.  On April 27, 2017, he was involved in a workplace accident and was tested again pursuant to the employer’s post-accident policy.

Turner’s April 24 test revealed a confirmed positive for amphetamines.  He produced a letter from his doctor that he was taking Sudafed.  He argued this explained the positive, claiming it was a false positive.  Nevertheless, he was terminated.

The April 27 post-accident test was negative.

As part of his appeal, Turner went to an independent lab and had a drug test conducted on April 28; it was negative.  Also part of the appeal, the company had the original sample re-tested.  It again tested positive for amphetamines.

Turner filed suit alleging violations of the Americans with Disabilities Act (ADA).  The court granted summary judgment to Phillips 66.  Turner appealed to the Tenth Circuit Court of Appeals who affirmed the judgment in favor of Phillips 66.

The holding we will discuss is that the drug tests were not an impermissible medical examination in violation of the ADA.

As a reminder, an employer cannot “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  42 U.S.C. § 12112(d)(4)(A).  This is true for all persons, regardless of whether that person has a disability.

It is well established that tests for illegal drugs are not an impermissible medical examination.  Turner argued that, because he was taking Sudafed (a legal drug), this rule did not apply.  The Court did not buy it.  Even if the test revealed Sudafed or showed a false positive, it did not convert the test for illegal drugs into an impermissible test for legal drugs.  The Turner Court stated:

“A test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.”

In other words, if the intent of the drug test is to discover the use of illegal drugs, the fact that it may also reveal the legal use of drugs does not, alone, make it an impermissible test under the ADA.

This is an interesting decision on its own of course, but even more interesting in light of Oklahoma’s medical marijuana laws.

In Oklahoma, a person can apply for and be granted a medical marijuana license (MML).  If a person has an Oklahoma MML, that person has certain legal protections under Oklahoma law, including some regarding drug testing under Oklahoma law.  However, under federal law, marijuana continues to be an illegal controlled substance.

We will certainly see cases and arguments involving the rights of employers and of Oklahoma employees with valid Oklahoma MMLs in the coming years.  This case, and the words of the Court of Appeals, may shed some light.  While there are no guarantees at this point, it would seem federal laws, like the ADA, will continue to hold fast that marijuana (medical or not) is an illegal drug.  If so, this Court’s decision would seem to hold for the proposition that testing for marijuana – even if it reveals a legal use under Oklahoma law – is not an impermissible medical examination under the ADA.

As the states continue to grapple with marijuana laws and so long as the federal government continues to classify marijuana as an illegal controlled substance, there will be interesting arguments  made under the various state and federal employment laws.  Stay tuned…

 

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