The ADA Does Not Protect an Employee Who Failed a Drug Test Because of Hemp Use

The use of products containing cannabinoids (CBD) is quite prevalent, with many assuming that it is perfectly legal. What they do not realize, however, is that they can trigger positive drug tests – and that employers may be able to discipline them based on those results. This case further offers lessons on what information is required to establish coverage under the Americans with Disabilities Act.

THC is the primary psychoactive component of marijuana, which belongs to the cannabis family. CBD products are derived from hemp, a variety of cannabis that is bred to contain little to no THC; any concentration of up to 0.3% THC is not a controlled substance and is not considered an illegal drug. However, because CBD products are not regulated, they may contain more THC than indicated on product labels, and therefore may actually cross the line to become an illegal drug.

Background of the Case: In Anderson v. Diamondback Investment Group, LLC, a new employee suffered from anxiety and pain, for which she took hemp-derived products and other over-the-counter painkillers. In the morning, she took a dropper-full of CBD oil, and then vaped a hemp cartridge at lunch time.

The employee’s pre-employment test, which came back after she started work, showed a positive result for marijuana. The Company decided to allow her to retest, and the employee informed them that she took Midol “for female issues,” Aleve-D and Benadryl “for sinus and allergy issues,” and CBD “for everything else.” The second test came back “invalid,” and she took a third test, which again returned a positive result. The employee alleged that she provided a nurse’s note that stated she took CBD for anxiety and muscle spasms. Nonetheless, the employer fired her for violation of the company’s drug-testing policy. Unsurprisingly, she sued, claiming violations of the ADA. The federal district court threw out her case and she appealed.

The Court’s Opinion: The U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s ruling. With regard to her claim of wrongful discharge under the ADA, the Fourth Circuit noted that an essential element of the claim is that she is a qualified individual with a disability. In this case, however, she offered no expert medical evidence to support her disability. The nurse’s note offered no information about limitations on major life activities, and the employee’s affidavit about her health contained only conclusory assertions. The Fourth Circuit noted that an employee’s affidavit alone can establish a disability, but only where it “elaborated in detail upon the plaintiff’s injuries, symptoms, and treatment.” That was not the case here.

Next, the Fourth Circuit found that the employer offered a legitimate, non-discriminatory reason for the termination – the fact that the employee twice tested positive for an illegal drug – marijuana – in violation of company policy. The employee argued that the policy itself was discriminatory, because it did not distinguish between illegal drug users and those who treat their disabilities with remedies that may contain illegal substances – or at least test as illegal. The Fourth Circuit disagreed, noting that an employer’s legitimate reason can be “correlated” with conduct covered by the ADA but still be nondiscriminatory. In this case, the employer “was free to implement a drug testing policy that results in the termination of an individual taking what the unchallenged drug test results showed to be an illegal drug—marijuana—to treat a disability, if that policy doesn’t have, as a goal, the intentional exclusion of any individual taking a lawfully prescribed drug to treat a disability.”

The employee also claimed that her termination violated North Carolina’s “lawful use of lawful products” law, which prohibits employers from taking adverse action against employees based on their off-duty use of lawful products – unless the employer’s restriction on such use is “relate[d] to a bona fide occupational requirement and is reasonably related to the employment activities.” Here, the Fourth Circuit found that the employee could not show that the hemp products were, in fact, legal, given the lack of any evidence regarding their THC content. Moreover, the Fourth Circuit determined that the employer had articulated a bona fide occupational requirement that was reasonably related to its employment activities – “a drug testing policy targeted to maintain workplace safety and efficiency.”

Lessons for Employers: This case offers some interesting guidance for employers. What is not particularly helpful is the ruling that an employee’s own (and shall we say, potentially self-serving) affidavit might be sufficient to establish a disability, but at least the court put some guardrails around it by requiring a certain level of specificity. More helpful is the point that an employer can implement and enforce a legitimate drug testing policy (although a number of states have enacted restrictions on testing for marijuana). And finally, for those employers in North Carolina, the interpretation of the lawful use of lawful products in the context of marijuana is quite helpful.