CBD Oil Discrimination Case Highlights Challenges Employers Face With Drug Tests for Marijuana

Under federal law, marijuana is still an illegal, Schedule 1 drug. This means that employers do not need to accommodate medical marijuana use under the ADA, even if marijuana is decriminalized or legalized under state law. CBD oil is a substance derived from the hemp plant, contains low levels of THC, and is legal.

What happens under the Americans with Disabilities Act when an employee with a disability is fired for a positive drug test for marijuana but claims that it’s a false positive for legally recommended CBD oil?

Faced with this exact scenario, a federal district court refused to dismiss an ADA suit on summary judgment.

In Huber v. Blue Cross & Blue Shield of Florida, Inc., the employee was a longtime migraine sufferer who took CBD oil for years at the recommendation of her physicians. She was asked to take a drug test in connection with her work on a federal contract. When she tested positive for marijuana, she submitted documentation from her physicians on her CBD oil use to explain the result. Her employer rejected that explanation and relied on a drug testing consultant’s finding that the test levels of THC were inconsistent with CBD oil use. The employee was terminated under the employer’s drug-free policy and brought suit. The employer terminated two nondisabled employees during the same round of testing, one of whom also claimed he was a false positive caused by CBD oil.

In its opinion denying dismissal of the suit, the court:

• • Determined that it was undisputed that the employee’s migraines qualified as a disability
  • Found issues of fact whether a negative drug test was needed for the employee’s job, where she did not directly work under a federal contract
  • Rejected the opinion of the drug testing consultant, including by taking judicial notice of a state law statute that provided higher threshold for excusable range
  • Held that the employer did not offer a reasonable accommodation for the employee for her disability and CBD oil use under the ADA by failing to account for the false positive

This case highlights the following takeaways as employers navigate the ever-evolving law on medical marijuana:

• • Think twice before taking adverse action on a positive drug test for marijuana under a drug-free policy.
  • Offer an employee the chance to explain a positive drug test.
  • Make sure to account for false positives when testing for marijuana.
  • Assess whether to update drug testing policies addressing marijuana, including at the pre-employment stage.
  • Consider whether or not to include drug testing for marijuana for non-safety sensitive positions and positions not governed by federal contracts.

Employers should keep in mind that state law employment protections may differ from federal law. Whether or not an employee should be accommodated under state law for medical marijuana use is a complex question that depends on the state.