2021Drug Testing
Test Tubes

Written By ESR News Blog Editor Thomas Ahearn

On April 28, 2021, a United States District Court in California dismissed a lawsuit filed by a former employee – Espindola v. Wismettac Asian Foods, Inc., Case 2:20-cv-03702 (C.D. Cal.) – who claimed disability discrimination after he was terminated from his job for testing positive for marijuana in a pre-employment drug test.

Despite the recreational use of marijuana being legal in California, District Judge John W. Holcomb ruled that an employer can condition a job offer on passing a pre-employment drug test that includes a test for marijuana, and that an employer has no obligation to engage in an interactive process before firing an employee.

In this case, the pre-employment drug test was postponed until after employment began at the request of the employee, who indicated he was not “disabled” and who signed a drug testing consent form where he disclosed that he had “chronic back pain” and was “prescribed” marijuana to treat his condition.

The employee – who did not provide details or documentation about his condition – took the drug test, tested positive for marijuana, and was terminated based on the results of the drug test. The former employee filed a lawsuit for retaliation and disability discrimination under the California Fair Employment and Housing Act (FEHA).

Judge Holcomb granted the employer’s summary judgment motion and ruled the failed drug test established for the employer a legitimate and nondiscriminatory reason for the employee’s termination. He also held that chronic back pain without more detail or documentation did not qualify as a disability under FEHA.

Marijuana workforce drug test positivity continued double-digit increases to keep the overall workforce drug test positivity rates at historically high levels, according to the 2021 Quest Diagnostics Drug Testing Index™ Analysis, the first large-scale national analysis of workforce drug testing during the Coronavirus (COVID-19) pandemic.

Based on more than 9 million drug tests in 2020, the analysis from Quest Diagnostics shows stark differences in positivity between states that permit recreational marijuana use with either medical use and no legal marijuana states. Marijuana positivity rate of post-accident test results grew faster than the rate for pre-employment testing.

The analysis found that marijuana positivity surged 118.2 percent in states with legal recreational use statutes from 2021 to 2020. In states with only medical marijuana statutes, marijuana positivity increased 68.4 percent. In states with no medical or recreational marijuana statutes, marijuana positives increased 57.9 percent.

The marijuana positivity rate in the general U.S. workforce was 3.6 percent in 2020, a 16 percent increase from 3.1 percent in 2019 and a 44 percent increase from 2.5 percent in 2016. The positivity rate in the federally mandated, safety-sensitive workforce was 0.79 percent in 2020, a 10.2 percent decrease from 0.88 percent in 2019.

Employment Screening Resources® (ESR) – a leading global background check provider that was ranked the #1 screening firm by HRO Today in 2020 – provides legally compliant pre- and post-employment drug testing with access to more than 10,000 collection facilities. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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