With medicinal cannabidiol (CBD) legal in all states, many employers may think that this substance poses no problem for their jobs. However, a federal case in Louisiana may prove otherwise. Recently, the court denied a summary judgment on discrimination claims for the dismissal of an employee for testing positive for tetrahydrocannabinol (THC).
Marijuana is still a Schedule I drug under the Controlled Substances Act, which means it is still illegal under federal law. In addition, the Americans with Disabilities Act (ADA) does not protect against illegal drug use. Consequently, this means that marijuana users are not covered either. As a result, the lack of a marijuana drug trust, possession or being under the influence while in the workplace are still grounds for extinction.
Unlike THC, which is psychoactive and illegal without a prescription in certain states, CBD is legal in all states. The problem concerns how CBD products can still contain small doses of THC, which can appear on drug tests and lead to failed tests.
In the case before the eastern district of Louisiana, the plaintiff suffered from chronic migraines, severe enough to be a disability. The plaintiff, who was asked to use CBD oil, experienced a significant improvement in her symptoms and job performance. However, his employer, aware of his use of CBD oil, still forced him to undergo a drug test.
The plaintiff reminded her employer of her use of CBD, which the employer allowed above all else. Your doctor also testified how the use of CBD oil can lead to a positive THC test. Still, the employer insisted that he undergo the test, which he tested positive.
However, the employer argued that the plaintiff was not a “qualified person” because of her inability to perform an essential part of her job and for having tested positive. Therefore, the dismissal was not because of his disability, so the employer sought summary judgment.
However, the court denied the summary judgment and demanded answers to the following three questions of fact:
- If the plaintiff was a qualified person
- If the leave was due to a disability
- Whether to allow a prescribed non-psychoactive CBD oil qualified as a reasonable fit and whether the employer properly counted its use in the testing policy.
The results of this case remain to be seen and could be the beginning of a new trend in litigation. Therefore, employers should consider the use of CBD products in their policies and procedures. In addition, employers should exercise caution when firing employees for a positive CBD-induced drug test.
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