A Louisiana federal district court in Huber v. Blue Cross & Blue Shield of Florida, Inc., recently denied an employer’s motion for a summary judgment in a case of the Americans with Disabilities Act (ADA) and the Louisiana Employment Discrimination Law (LEDL), finding , among other things, that counting and excusing a false positive drug test as a result of prolonged cannabidiol (CBD) use may be a reasonable fit.
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Michelle Huber, a computer analyst working remotely for Blue Cross and Blue Shield of Florida, Inc. (BCBS), suffered from recurring debilitating migraines for which she received accommodation from 2006 and took a frequent discharge under the Medical and Family Leave Act. (FMLA) from 2014 to 2016. In 2016, Huber was diagnosed with hemiplegic migraines, which cause unilateral weakness and total deterioration for up to three days. In 2017, her doctor recommended “non-psychoactive hemp-based CBD oil” to control her migraines. While using CBD oil, Huber’s migraines improved, as did her job performance. In fact, Huber was promoted, received “five out of five” performance scores, and reduced her overall FMLA termination after starting a CBD regime.
In 2019, Huber was informed that he would have to take a drug test because of the requirements of the federal contract. Huber reminded his supervisor of his disability, that his medications included CBD oil and that because of his promotion he was not covered by the federal contract in question. Huber’s supervisor told him to “play well” and take the drug test anyway because the results would have nothing to do with his job. Despite these guarantees, the employer terminated Huber’s work after she failed the drug test for tetrahydrocannabinol (THC), the psychoactive compound in marijuana.
Huber filed a lawsuit alleging that BCBS violated the ADA and LEDL by terminating its work for its disability, by failing to adapt to its disability, and by intentionally interfering with its rights under the ADA. BCBS filed a motion for summary judgment, arguing that Huber was not a “qualified person” under the ADA or LEDL because taking a drug test was a requirement for the job and that the reasons for his discharge, which he did not passed the drug test, it was not a pretext for illegal discrimination. U.S. District Judge Mary Ann Vial Lemmon denied a summary judgment on all claims.
Decision of the District Court
The issue at hand in Huber’s illegal termination lawsuit was whether she was a qualified person under the ADA or the LEDL. The court held that whether Huber was qualified was a matter for the jury because it was unclear whether the federal contract applied to her, and even if it did, BCBS had not shown that it was under the influence of unlawful acts. Legal and not prescribed. controlled substances while working remotely. Huber filed an affidavit stating that he had never used marijuana and sent a letter from his doctor explaining that the CBD oil product he was taking could produce a false positive. The BCBS Medical Review Officer (MRO) stated that the results were “too high to be a false positive,” but his own senior employee relations consultant stated that the MRO did not appear to have considered whether the others fourteen prescription drugs from Huber in combination with his chronic health. conditions, her body weight, and her prolonged use of CBD oil for several years could have caused her to metabolize CBD oil at a much slower rate than normal, leading to a positive result. The court further explained that BCBS dependence on a 15 ng / mL limit for THC was below the lower end of Louisiana’s statutory range of 50 to 100 ng / mL for possible THC concentrations. negative occupational consequences.
The court also found questions of fact as to whether the reason for the discharge, not a drug test, was pretextual. BCBS argued that it had “accommodated [Huber’s] for more than a decade “, that he had been granted a leave of absence under the FMLA and that he could take time off as needed, and that after the same round of tests that led to his , two other non-disabled employees were dismissed on a positive basis, including one who claimed the test result was a false positive caused by CBD oil, and Huber argued that BCBS ‘true motivation for his dismissal was discriminatory because, he alleged, the company was trying to avoid future health care costs for his disability, which had already cost more than $ 700,000.
The court noted that Huber “noted evidence that although [BCBS’s] proposed reason [were] true, it could have been an additional motivating factor [her] disability, which has[d] required [BCBS] to absorb large medical costs. “
“This theory,” the court said, “along with the question of whether drug testing was really necessary for [Huber’s] position, indicate outstanding factual issues “.
The most interesting issue in the case is the claim for non-compliance. BCBS admitted that Huber was a qualified person with a disability and was aware of the limitations imposed by the disability. BCBS challenged whether it had not reasonably adapted to its known limitations. Huber stated that BCBS had not “accommodated him by not allowing him to use non-psychoactive CBD oil prescribed by medicine to manage his migraines.” BCBS countered this argument by stating that it never restricted Huber from taking CBD and that Huber asked him to ignore a positive THC drug test result. Excusing a positive test result is not a reasonable adaptation, BCBS argued, but a form of preferential treatment.
The court held that the accommodation requested by Huber, which was allowed to use CBD oil to control her migraines, necessarily implied that a false positive caused by CBD oil would not be made against her. “So that the accommodation is reasonable,” the court wrote, “[the] the defendant must provide some way to justify and excuse a false positive. “The court noted that while BCBS had argued that Huber had had the opportunity to provide additional information about his use of CBD, it was unclear for the court that BCBS had actually considered the additional information provided by Huber to explain its positive test result.The court further held that the employer had not provided a good faith basis for its finding that Huber’s 90 ng / mL result was a definite positive result (not a false positive), although it was within the legal range of excusable levels in Louisiana when there were negative labor consequences. Accordingly, the court found a question of fact about the claim of reasonable accommodation.
Finally, the court allowed Huber’s ADA interference claim to be advanced, noting that the U.S. Court of Appeals for the Fifth Circuit has not yet articulated specific evidence to declare that claim. The court explained that by using CBD oil to control his migraines, Huber “participated in the enjoyment of a protected right” and “[a]The implicit corollary of this adaptation is that the employer must take into account a false positive test caused by CBD oil. “
Key points
First of all, it’s important to note that this is a case involving the use of CBD oil, not medical marijuana, which has been allowed in Louisiana since 2019 and is psychoactive due to the increase. of THC content. However, CBD products contain traces of THC (less than 0.3 percent). Because this is a CBD case, not a marijuana case, the court was not required to reconcile the apparent conflict between the ADA, which does not recognize marijuana as a prescription drug because it is a Annex I controlled substance under federal anti-drug. laws, and the LEDL, which does not replicate ADA marijuana treatment.
Second, with the growing popularity of CBD oil to treat a myriad of health problems, such as pain, anxiety, and sleep problems, employers may want to be prepared to address possible counterfeit drug screens. positive caused by traces of THC in some CBD oils. Employers may also want to consider how to adapt to positive false drug testing caused by the use of CBD oils, as the district court has explained. When evaluating a THC-positive drug test, employers may want to consider all relevant facts, including the employee’s medical history.
Finally, Louisiana employers may want to consider the Louisiana legal range of 50 ng / ml – 100 ng / ml for THC concentrations before making negative work decisions.
© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All Rights Reserved.National Law Review, Volume XII, Number 165
