Labor and Employment Law Weekly Update

04 June 2012 Publication

Legal News: Employment Law Update

ADA Protection for Medical Marijuana Use Goes Up in Smoke
Written by: Michael W. Groebe

The ADA does not protect an employee using medical marijuana, even if the individual is using medical marijuana under the supervision of a doctor and in compliance with state law. The Ninth Circuit Court of Appeals issued its opinion on May 22, 2012 in James v. City of Costa Mesa. Four severely disabled individuals who were using medical marijuana under the supervision of their doctors and pursuant to California law filed suit against the cities of Costa Mesa and Lake Forest to stop them from shutting down the collectives that dispense medical marijuana.

The court emphasized that the ADA specifically provides that an “individual with a disability” does not include an individual who is currently engaging in illegal drug use. The court rejected the disabled individuals’ claims that their doctor-supervised use that is legal under California law should not be considered illegal drug use. Because federal law prohibits the use of marijuana (medicinal or recreational), use of medical marijuana still qualifies as illegal drug use for purposes of the ADA.

While the facts in the case did not specifically involve an employment relationship, the same reasoning would apply under the ADA provisions dealing with employment discrimination. In both contexts, individuals currently engaging in illegal drug use are not protected under the ADA.

The decision is consistent with a line of state and federal court opinions that have refused to prohibit discrimination against medical marijuana users based solely on their use of medical marijuana. (See previous Legal News: Employment Law Updates for June 13, 2011October 25, 2010 and April 27, 2010 related to medical marijuana). While discrimination based on the use of medical marijuana may not be prohibited, discrimination based on the underlying disability is prohibited. Thus, employment decisions should be focused on the medical marijuana use itself and not the underlying condition.

Employers Should Avoid Requesting Facebook Passwords
Written by: Rebecca Hanson

In the information age, it may be tempting for employers to seek out personal information about prospective employees before making a hiring decision and, given the number of social media outlets, including Facebook, it is certainly easy for employers to do so. Indeed, Facebook is a potential wealth of information that otherwise might not be available to an employer through the traditional hiring process.

Because of the recent uproar by legislators around the country, employers who request Facebook and other social media passwords from prospective employees may want to rethink this practice. State legislatures are moving to ban the practice, and some states have already succeeded in passing bills prohibiting such requests, including Maryland and Illinois. Similar proposals have been introduced in New York, California, Washington, and Ohio. Further, federal legislators introduced a similar bill in the U.S. House of Representatives in late April and companion proposals in the both the House and U.S. Senate in early May. Facebook itself prohibits users from sharing passwords, and Facebook’s chief privacy officer has publicly warned employers that Facebook may take action against employers who request passwords, stating that Facebook will “take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.”

Even without this momentum, employers expose themselves to unnecessary legal problems when requesting passwords from prospective employees. Facebook pages typically include a person’s age, race, religion, marital status, and other identifying information, putting employers at risk for claims of illegal discrimination. For example, a prospective employee could sue a company, alleging that the company’s decision not to hire the individual was based on the company’s knowledge of the person’s religious identity, information that could have been gleaned only through the company’s access to the individual’s Facebook page.

In short, employers would be wise to instruct their human resources departments to put a stop to password requests.

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.

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