Employer, Wismettac Asian Foods, Inc., extended an offer of employment to the plaintiff (Espindola) for an executive level position at the company's California-based location. At the time of the offer, Espindola resided in Florida. Per the offer letter issued to Espindola, employment was at-will and subject to the policies included in Wismettac's handbook, which outlined the pre-employment drug testing policies. However, Espindola did not receive a copy of the handbook. Additionally, Wismettac failed to explicitly state that the employment offer was contingent upon passing a pre-employment drug test.

Prior to starting the position yet after accepting the offer, the employer informed Espindola that he would be subject to a pre-employment drug test. For personal reasons, Espindola requested a postponement, which was obliged by the employer. After the employer agreed to delay the test, Espindola sought a medical marijuana card in Florida. Prior to his first day of work, Espindola never disclosed that he was disabled or used medical marijuana.

Part of the onboarding paperwork included a drug testing consent form, which Espindola signed. Upon completing the paperwork, Espindola disclosed to the employer that he suffered from "chronic back pain" and as such, had secured a medical marijuana card from the State of Florida. To substantiate this disclosure, Espindola submitted correspondence from the Florida Department of Health which confirmed approval for the card. The correspondence did not include information pertaining to Espindola medical condition or the criteria evaluated in determining whether or not the card should be issued. Espindola's drug test was conducted on his first day of work and he tested positive for marijuana. As a result, Wismettac terminated his employment.

Espindola filed a federal action citing retaliation and disability discrimination under the California Fair Employment and Housing Act (FEHA) for wrongful termination, failure to accommodate and failure to engage in the interactive process. Wismettac moved for summary judgement, arguing that a prima facie case for disability under the FEHA could not be established because simply reporting subjective symptoms does not suffice in establishing a disability under the FEHA.

Ultimately, the court granted Wismettac's motion for summary judgment in its entirety, indicating that Espindola failed to provide documentation to support that "his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline," nor did he "provide any explanation or detail concerning how his chronic back pain limited his ability to work." Additionally, the court noted that during Espindola's short employment period with the company, he demonstrated that his claimed disability did not impact his performance. Espindola also never lodged a specific accommodation request. Espindola's argument that the pre-employment drug test was illegal (because it was conducted after he began working and was used as a pretext to fire him for his disability) was also rejected by the court as Espindola was advised that he would be required to submit to pre-employment drug testing, regardless of the delay granted by Wismettac.

Employers are encouraged to routinely review policies and protocols pertaining to pre-employment drug testing, particularly as it relates to positive results for marijuana.

Posted: June 7, 2021