Employer Armstrong Produce learned a valuable lesson as the result of a recent ruling in a case involving the employer: adverse employment action must be based on concrete evidence of marijuana use, such as a positive drug test or admission of drug use. The Ninth Circuit Court of Appeals refused to dismiss a medical marijuana-using applicant’s disability discrimination claim in Kamakeeaina v. Armstrong Produce, Ltd., 2019 U.S. Dist. LEXIS 50863 (9th Cir. March 22, 2019) because it could not be proven that marijuana had actually been used at the time of the plaintiff’s interview. The plaintiff’s conditional job offer was rescinded by the company after he stated that he understood it would be “taken off the table” if he failed the drug test. A drug test was not conducted before the offer was withdrawn, the decision based solely on the applicant’s status as a medical marijuana card holder.

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