FONDA — Amsterdam has been ordered by a state Supreme Court judge to pay a former worker a $191,762 monetary award and to reinstate the employee who was fired after failing a drug test despite having a medical marijuana prescription.
Montgomery County state Supreme Court Justice Rebecca Slezak last week rejected post-trial motions by the city seeking to have a June jury verdict in favor of Thomas Apholz vacated.
Furthermore, Slezak ordered Amsterdam to reinstate the former wastewater treatment plant worker within 45 days. The city must also pay the previously ordered monetary award of $191,762 with pre-judgment interest, attorneys fees of $149,107.59 and any other legal fees the court deems reasonable based on submitted claims.
Apholz, represented by Kevin Luibrand of Luibrand Law Firm, filed a lawsuit against the city after he was fired in March 2020 for failing a random drug test a month earlier. He previously signed a last chance agreement after refusing a drug test in 2017. The agreement acknowledged the city would end his employment if he refused or failed another drug test.
However, Apholz was issued a medical marijuana license for chronic pain that was valid from March 23, 2019 to March 23, 2020. The lawsuit accused the city of unlawful employment discrimination and failure to accommodate under state Human Rights Law.
State law recognizes individuals prescribed medical marijuana as having a disability, which makes them members of a protected class safeguarded from employment discrimination.
“The city of Amsterdam has no business dictating what medicine a doctor can prescribe for an employee while off duty. The city should get out of Mr. Apholz’s private doctor-patient decisions and allow him to return to do the job he did so well,” Luibrand said in a prepared response to a request for comment.
Amsterdam, represented by Gregg Johnson of Johnson & Laws, LLC, has filed a notice to appeal Slezak’s decision and order to the state Supreme Court Appellate Division. The city previously filed an appeal after the judge denied its motion for a summary judgment seeking dismissal of the lawsuit.
Johnson declined comment when contacted on Tuesday, citing the pending appeals. The Appellate Division has scheduled the originally filed appeal for the court term beginning in September.
The city contends in legal filings that Apholz never notified officials he had been prescribed medical marijuana until he was placed on suspension and then terminated for failing the drug test in 2020. Therefore, the city claims it was unaware of Apholz’s disability and could not discriminate against or accommodate his condition.
Additionally, the city alleges Apholz never requested an accommodation and never showed how he could continue to perform the “essential functions” of his “safety sensitive” job. Apholz operated vehicles and equipment as part of his role at the wastewater treatment plant.
Meanwhile, Luibrand has said his client took the medical marijuana in capsule form on non-workdays and in the evening at home. Never at work.
“The city’s decisions have cost and will continue to cost taxpayers substantial and often unnecessary amounts of money,” Luibrand stated.
