Marijuana legalization, medical and otherwise, is a tricky area for employers in the U.S., filled with ambiguities from state to state and even on the federal level. That’s also true for legal products derived from cannabis.
A May 13 court decision involving the Americans with Disabilities Act (ADA), an employee taking a legal cannabis product for chronic migraines and a positive marijuana drug test is a perfect illustration of just how confusing the marijuana issue has become.
High levels of THC from CBD oil?
In Huber v. Blue Cross & Blue Shield of Florida, the employee had chronic migraines and had been taking CBD oil – a legal cannabis derivative that contains low levels of THC – for years under direction from her doctor.
Her employer asked her to take a drug test in connection with her work on a federal contract. When she tested positive for marijuana she submitted documentation on her CBD oil use from her doctor as an explanation for the result.
But her employer didn’t accept that explanation because a drug testing consultant found the levels of THC were inconsistent with CBD oil use, according to law firm Phelps Dunbar.
The employee was fired and then filed an ADA lawsuit against the employer. Two other non-disabled employees were fired during the same round of testing with one of them also claiming a false positive from CBD oil.
Court refuses to dismiss lawsuit
The U.S. District Court for the Eastern District of Louisiana denied the employer’s request to dismiss the suit because it found:
- it was undisputed that the employee’s migraine qualified as a disability
- issues of fact on whether a negative test was needed for the job, which didn’t involve direct work under the federal contract
- rejection of the drug testing consultant’s opinion was warranted, in part because of a state law that provided a higher threshold for the excusable range of THC in CBD oil, and
- that the employer didn’t offer a reasonable accommodation for the employee’s disability and CBD use under the ADA by failing to account for the false positive.
Think twice before taking action
What does this mean for employers? For starters, Phelps Dunbar said employers should think twice before taking adverse employment action based on a positive marijuana drug test, as false positives should be accounted for before making a decision. That includes giving an employee the chance to explain a positive drug test.
Employers may want to decide whether they should update drug testing policies for marijuana at the pre-employment stage and for non-safety sensitive and non-federal contract positions.
Also remember that differences between laws of individual states and the federal government have made questions surrounding employee marijuana use quite murky, so it’s best to check an individual’s state law before taking action and, if at all possible, consult legal counsel.
