This country’s relationship with cannabis is complicated and, as is often the case on complicated issues, words count. Marijuana and hemp are different varieties of the plant Cannabis sativa L. Therefore, “cannabis” is a scientific term, not a legal one.
Although historically the Controlled Substances Act did not distinguish 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 that the plant contained less than 0.3% tetrahydrocannabinol (THC). Any cannabis plant sativa L or derived from that plant with a higher level of THC is considered “marijuana,” which remains a list I substance, the most strictly regulated category of narcotics, according to the Controlled Substances Act. Because THC is the psychoactive ingredient in marijuana that produces the feeling of being “high,” a critical difference between marijuana and hemp is that hemp will not produce a “high”. In short, and for relevant purposes below, hemp-derived CBD is legal to be owned under federal law (and the law of most states), while marijuana is illegal at the federal level.
Sounds simple? May be. But what happens when an employee uses CBD derived from hemp, which under federal law can contain up to 0.3% THC, and then tests positive for THC. A Louisiana federal court recently offered an insight into what will come next. In Huber v. Blue Cross & Blue Shield of Fla., Inc., a Louisiana federal court denied a summary judgment to an employer who fired an employee who failed a marijuana drug test after taking a CBD product.
Background on ADA and marijuana
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 states that illegal drug use is not protected, does not protect people who use marijuana, even for medical purposes. Therefore, the ADA does not protect users of medical marijuana, and you can generally fire employees who do not pass a marijuana drug test, have marijuana in person at work, or are under the influence of marijuana while they are at work (but be sure to check it out). state legalization laws for anything to the contrary).
What about CBD and THC? You can buy CBD legally in every state in the United States, but most states still have laws that make THC (the psychoactive component of marijuana) illegal, especially without a prescription. However, CBD can lead to a positive drug test. Hemp-derived CBD may contain low levels of THC that are shown in a drug test. The Eastern District of Louisiana addressed this same issue when considering whether the ADA protects an employee when a positive drug test could have been triggered by CBD use.
In Huber, the plaintiff, Michelle Huber, suffered from chronic and severe migraines to the point of disability. His doctor recommended that he use “non-psychoactive” CBD oil. CBD oil greatly improved its symptoms and even its work performance. Huber’s employer, Blue Cross and Blue Shield of Florida (BCBSF) knew he was using CBD oil for his migraines. Two years later, Huber had to take a drug test as part of his job on a federal contract. Although Huber said he had never used marijuana or any other substance that contained THC, he reminded BCBSF of his use of CBD (and his doctor testified that his use of CBD could lead to a positive test all and that he was not using THC). Huber also noted that she was no longer covered by the federal contract and should not be subjected to drug testing. However, BCBSF required him to undergo the drug test and obtained a positive result for THC. BCBSF terminated its work for the positive test.
Huber filed a lawsuit, alleging that BCBSF violated the ADA by terminating his work due to his disability and by not adapting to his disability. BCBSF filed a summary judgment, arguing that Huber was not a “qualified individual” because he could not perform an essential function of his job: passing a drug test. BCBSF also argued that the reason for his dismissal was not his disability but rather his positive drug test. The court denied the summary judgment, considering that there were too many factual issues on three important issues:
- If Huber was a qualified person
- If BCBSF fired Huber because of his disability
- If it was reasonable accommodation for BCBSF to allow Huber’s use of medically prescribed non-psychoactive CBD oil to manage his migraines, but then fired the same employee when he received a positive drug test and was not allowed explain the potential reason for the positive. test
It is important to note that the court noted that CBD is “a legal drug that can result in a false positive drug result.” In addition, the court found it important that BCBSF give a “subsidy” for the employee’s CBD use and then not allow her to count a positive THC test because of that same CBD use.
Takeaway food
Only time will tell if this case is an atypical one 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:
- Be careful when dismissing employees for a positive THC test when you know the employee is openly using CBD.
- Consider whether an employee’s use of CBD is a reasonable “adjustment” according to the ADA. Whether or not it is a reasonable adaptation will depend on the facts of each case.
- Remember that actual marijuana use is not protected by the ADA because marijuana is illegal under federal law. In general, employers are free to continue banning and disciplining marijuana; just beware of the positive evidence that can be attributed to the legal use of CBD.
- Update job descriptions that require drug testing as an essential function of the job.
- Finally, always remember to participate in the interactive process with any employee looking for reasonable accommodations for a disability.
