Employee fired for failing cannabis test after CBD use wins lawsuit
This country’s relationship with cannabis is complicated, and as is often the case in complicated matters, words matter. Marijuana and hemp are different strains of Cannabis sativa L plant. Thus, “cannabis” is a scientific term, not a legal term.
Although the Controlled Substances Act historically made no distinction between marijuana and hemp, in 2018 the federal government defined “hemp” as any part of the Cannabis sativa L plant, including all derivatives and extracts such as cannabidiol (CBD), provided the plant contains less than 0.3% tetrahydrocannabinol (THC). Any Cannabis sativa L The plant or derivative of such a plant with a higher level of THC is considered “marijuana”, which remains a Schedule I substance – the most strictly regulated class of narcotics – under the Act. on controlled substances. Because THC is the psychoactive ingredient in marijuana that produces the feeling of being “high”, a key difference between marijuana and hemp is that hemp will not produce a “high”. In short, and for the relevant purposes below, possession of hemp-derived CBD is legal under federal law (and most state law), while marijuana is illegal federally.
Sound simple? Maybe. But what happens when an employee uses hemp-derived CBD — which under federal law can contain up to 0.3% THC — and then tests positive for THC? . A federal court in Louisiana recently offered some insight into what’s to come. In Huber vs. Blue Cross & Blue Shield of Fla., Inc.a federal court in Louisiana has denied summary judgment for an employer who fired an employee who failed a marijuana drug test after taking a CBD product.
ADA and Marijuana Background
As we discussed a few weeks ago, marijuana is still a Schedule I drug under the federal Controlled Substances Act, which means it is illegal under federal law. As a result, the ADA, which provides that illicit drug use is unprotected, does not protect people who use marijuana, even for medical purposes. Therefore, the ADA does not protect medical marijuana users, and you can generally fire employees who fail a marijuana drug test, have marijuana on them at work, or are under the influence. influence of marijuana at work (but be sure to check your state legalization laws for anything to the contrary).
What about CBD and THC? You can buy CBD legally in every US state, but most states still have laws making THC (the psychoactive component of marijuana) illegal, especially without a prescription. However, CBD can trigger a positive drug test. Hemp-derived CBD may contain low levels of THC that show up on a drug test. The Eastern District of Louisiana tackled this issue by examining whether the ADA protects an employee when a positive drug test may have been triggered by CBD use.
In Huber, the plaintiff, Michelle Huber, suffered from chronic and severe migraines to the point of disability. Her doctor recommended she use “non-psychoactive” CBD oil. CBD oil greatly improved his symptoms and even his performance at work. Huber’s employer, Blue Cross and Blue Shield of Florida (BCBSF), knew she was using CBD oil for her migraines. Two years later, Huber had to pass a drug test while working on a federal contract. Although Huber said she had never used marijuana or any other THC-containing substance, she reminded the BCBSF of her CBD use (and her doctor testified that her CBD use could result in a positive test. even though she was not using THC). Huber also pointed out that she was no longer covered by the federal contract and should not be subject to drug testing. Nevertheless, the BCBSF forced her to submit to the drug test and she tested positive for THC. BCBSF terminated its employment for the positive test.
Huber filed a lawsuit, claiming the BCBSF violated the ADA by terminating his employment because of his disability and disregarding his disability. BCBSF sought summary judgment, arguing that Huber was not a “qualified person” because she could not perform an essential function of her job – pass a drug test. BCBSF also argued that the reason for his dismissal was not his disability, but rather his positive drug test. The court dismissed the summary judgment, finding that there were too many factual questions on three important issues:
If Huber was a qualified person
If BCBSF fired Huber because of his disability
If it was a reasonable accommodation for BCBSF to allow Huber to use non-psychoactive, doctor-prescribed CBD oil to manage her migraines, but then fire that same employee when she received a positive drug test result and was not allowed to explain the potential reason for the positive test result
Importantly, the court noted that CBD is “a legal drug that can cause a false positive result.” Additionally, the court found it significant that the BCBSF awarded “compensation” for the employee’s CBD use and did not allow her to explain a positive THC test due to that very CBD use.
Take away food
Only time will tell if this case is an outlier or the start of a new legal trend. But it is clear that the courts are taking note of the distinction between CBD and THC. Things to keep in mind:
Use caution when firing employees for testing positive for THC when you know the employee is openly using CBD.
Consider whether an employee’s use of CBD is a reasonable “accommodation” under the ADA. Whether or not this is a reasonable accommodation will depend on the facts of each case.
Remember that real marijuana use is not protected by the ADA because marijuana is illegal under federal law. Generally, employers are free to continue to ban and discipline marijuana – just be careful of positive tests that can be attributed to legal CBD use.
Update all job descriptions for positions that require drug testing as an essential function.
Finally, remember to engage in the interactive process with any employee seeking reasonable accommodation for a disability.
© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 181