Don’t Fire Me! I’m Drug Free! It Was CBD! Indiana Court Examines Termination for Use of Hemp Oil
In our modern world of a booming CBD industry and an increasing number of states that have legalized marijuana, can you terminate an employee for a positive drug test for marijuana? What if the test shows marijuana metabolites but you find out later it was a positive for CBD oil (a legal substance)? Does federal law protect an employee in any way in this scenario? In Rocchio v. E&B Paving, LLC, a federal district court in Indiana looked at this issue under the Americans with Disabilities Act and found no federal legal protection for the employee’s use of CBD oil.
Just the Facts
E&B prohibited the use of illegal drugs at their workplace and based the policy on safety concerns. It used a third party to administer random tests. E&B had a zero tolerance policy and immediately terminated employees who tested positive. One of the prohibited drugs for which E&B tested was marijuana.
Employee John Rocchio’s number came up, he took his drug test, and the test revealed marijuana metabolites in his system. The third-party testing administrator notified E&B that Rocchio tested positive for marijuana, and E&B terminated his employment. The employee who recommended the termination relied on the report of a positive drug test. A straightforward example of prohibited conduct and consequences, right? Not so fast, said Rocchio.
You Can’t Fire Me for Using CBD Oil!
Rocchio said he did not use marijuana, and the positive test was because he used CBD oil (also known as cannabinoid oil), a legally sold hemp extract. E&B relied on the drug test result rather than Rocchio’s plea of innocence and did not bring him back to work.
Rocchio filed a lawsuit claiming, among other things, that E&B violated the ADA by terminating him and not rehiring him. How was he disabled you ask? He argued that his employer “regarded” him as having a disability. The court found that even if Rocchio could prove that he was a qualified individual with a disability, he still could not prove he was terminated because of his disability and not the positive drug test.
ADA Doesn’t Prohibit Testing for Legal Substances
Just because the ADA does not say employers can test for legal substances (like CBD oil), does not mean they can’t. According to the opinion, Rocchio argued:
Because the ADA explicitly permits covered entities to prohibit the use of illegal drugs and to test for the use of illegal drugs, 42 U.S.C.§ 12114(c)-(d), but does not explicitly permit bans of legal drugs or testing for legal drugs, it follows that “it violates the ADA” if an entity takes an adverse action against an employee who tests positive from the use of CBD oil, a legal substance.
Clever, but the court did not agree. As an initial matter, the court held the ADA’s lack of explicit permission for a company to ban the use of legal substances does not mean the ADA prohibits such a ban. As we all know, a company can terminate an employee for any reason, fair or unfair, as long as it is not illegal. Also, E&B was not testing for CBD oil — it was testing for marijuana. The court pointed out that Rocchio presented no evidence that E&B knew the positive test result was because of CBD oil rather than marijuana. The report from the third-party testing administrator reported marijuana metabolites — not CBD oil.
No Evidence of a Perceived Disability
Now let’s get to the perceived disability claim:
Mr. Rocchio’s only evidence of discrimination is his argument that Defendants’ policy of terminating employees who test positive for drugs “categorically” “regards” them as users of illegal drugs and, because Defendants cite safety concerns as the rationale behind the policy, as having an impairment under the ADA.
Not so fast, said the court. First, just because E&B has a drug testing policy for safety reasons does not mean that it automatically believes every employee who tests positive has an impairment under the ADA. Even if E&B thought some employees who test positive will have an impairment, that does not mean it thinks all of them are impaired. Rocchio had to show that E&B thought he had an impairment. Second, an employer “does not have to tolerate unacceptable behavior” — like a positive test for illegal drugs — “even if that behavior is precipitated by an employee’s disability.” Finally, Rocchio had no other evidence of disability discrimination. Although two people (one an E&B employee) told him they were sorry to hear about his drug addiction, he had no evidence that those folks based the comments on anything other than “word of mouth” and speculation.
The court found no ADA violation and granted E&B’s motion for summary judgment.
This case raises interesting issues for employers. Rocchio says he was engaging in legal, off-duty behavior and it got him fired. This case suggests that if there is legal protection for him, it is not under the ADA. The facts that the court seemed to find most helpful for the employer were:
- The employer did not target the employee for testing — it was random and a third-party administrator handled it.
- The report to the employer was that the employee tested positive for marijuana metabolites. It never got a report about CBD oil or another legal substance.
- The employer consistently terminated employees who tested positive.
So what can we learn from this case? Your drug test may report CBD oil as positive for marijuana. You may want to warn your employees about that potential. If you do not want to terminate CBD oil users, think about what steps you should take to avoid this scenario, perhaps by having CBD users disclose it before testing (like a prescription drug). Also, if you live in Indiana, this case is helpful. However, this may have ended differently in a state that has legalized marijuana and/or has a law protecting legal, off-duty conduct. Check your local laws to be sure.
Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and…
Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators, administrative law judges and federal and state court judges. She has tried more than 30 cases to verdict.
Will Manuel focuses his practice primarily on commercial and employment litigation. Will advises businesses on issues involving age discrimination, sexual harassment and wage/overtime disputes for both large and small businesses in across Mississippi and other jurisdictions. His clients include numerous manufacturers and commercial…
Will Manuel focuses his practice primarily on commercial and employment litigation. Will advises businesses on issues involving age discrimination, sexual harassment and wage/overtime disputes for both large and small businesses in across Mississippi and other jurisdictions. His clients include numerous manufacturers and commercial interests as well as various insurance and financial services companies. He has worked to defend these clients in both MDL litigation and individual actions brought in Mississippi. Will’s focus is on active litigation from the initial discovery process through trial. View articles by Will.
As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to…
As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to commercial real estate companies to insurance companies and high net worth individuals – on best practices for interacting with cannabis companies.
Whitt is one of the leading voices in the cannabis bar – recognized as a “Go-To Thought Leader” by the National Law Review. He has presented on cannabis issues at conferences around the country. His work has been featured in the National Law Journal, Law360, and the Westlaw Journal. And he has been quoted in an array of legal and mainstream publications from Law360 and Super Lawyers to the Atlanta Journal-Constitution and the Associated Press.
Will taking cannabidiol cause you to fail a pre-employment drug screening?
People add it to their morning coffee or happy hour cocktails.
Cannabidiol, commonly called CBD, is popular cannabis derivative. On its own, cannabidiol won’t get you high. But, there is still a small chance that indulging in those CBD products could lead to a failed drug test. Here’s why.
What’s the difference between CBD and THC?
Both cannabidiol and tetrahydrocannabinol (THC) are compounds that come that come from cannabis.
THC is the psychoactive ingredient in marijuana. That means THC, not CBD, is what creates the feeling of being stoned.
Are employers screening for CBD?
Most employers aren’t screening for CBD itself. They’re testing for THC or the byproducts of metabolizing THC to determine whether employees have used marijuana.
Federal workers can be screened for a variety of substances, including THC and THC metabolites, but CBD is not listed in federal drug testing rules.
Many private employers model their drug policies on federal standards.
Likewise, Michigan’s Civil Service Commission follows federal guidelines for illicit substances, said commission spokesman Matt Fedorchuk. That means state workers are likely being screened for THC, not CBD.
Quest Diagnostics, one of the nation’s largest drug screening firms, does not offer a test for CBD compounds, said Dr. Barry Samples, the company’s director of science and technology.
How much THC is in CBD products?
Many CBD products contain nonexistent or low amounts of THC, so it’s “highly unlikely” that those items would meet the threshold to trigger a failed drug test, Samples said.
A federal farm bill, signed by President Donald Trump in 2018, effectively legalized CBD with less than 0.3% THC by classifying the product as industrial hemp rather than marijuana.
It would be nearly impossible for a THC concentration that low to trigger a failed drug test, even if someone was ingesting the CBD product every day, said Jamie Alan, an assistant professor of pharmacology and toxicology at Michigan State University.
How could CBD products trigger a failed screening?
Problems could arise if someone unknowingly takes CBD with a high concentration of THC.
CBD products remain in regulatory limbo, which means you can’t always trust a label that says CBD is “THC-free,” Alan warned.
The 2018 farm bill put industrial hemp under strict oversight from the U.S. Department of Agriculture, but the Michigan Department of Agriculture and Rural Development has yet to license any hemp growers.
Furthermore, the U.S. Food and Drug Administration has not given approval to most forms of CBD, prompting local health departments to crack down on restaurants that were adding CBD to food and drinks.
“It really is a buyer beware situation,” Samples said of CBD.
Can you be fired for a failed drug test?
If CBD products do cause you to fail a drug test, you could be fired.
Although Michigan voters have legalized recreational and medical use of cannabis, the drug remains illegal at the federal level and businesses have discretion over their own workplace drug policies.
Courts in Michigan have ruled that employers can fire or deny jobs to people who test positive for marijuana, even if those people have state-issued medical marijuana cards.
How safe, effective is CBD?
CBD users rave about how the substance reduces anxiety, improves sleep and soothes skin, but Alan cautioned that scientific evidence is still limited.
The strongest CBD research involves using the substance control epileptic seizures, Alan said. The only FDA-approved CBD product is Epidiolex, a drug used to treat seizures associated with two rare forms of epilepsy.
Research has shown CBD to be safe in the short-term when ingested or applied to skin, Alan said, although she cautioned against the possible risks of inhaling CBD oil through a vape pen.
In short, CBD might be promising but you should be careful about claims of a miracle, cure-all substance.
“There’s a lot of area for opportunity with this compound,” Alan said. “The research is still in its infancy.”
Contact Sarah Lehr at (517) 377-1056 or [email protected] Follow her on Twitter @SarahGLehr.
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Weed? CBD? New products, new laws are causing confusion in the workplace
CBD has exploded in popularity since Trump legalized the cultivation of hemp, but is it a medical miracle or just another fad?
From makeup and oils to capsules for stress relief, cannabis-based goods are flowing into the marketplace. But while they may not get you high, they can still cause you problems at work.
Cannabidiol or CBD has been showing up in a widening array of goods. That’s because federal legislation in 2018 deemed that hemp – one of its sources – was not an illegal controlled substance.
But your job could be in jeopardy if one of those products, which are largely unregulated, contains THC, the same compound that causes marijuana users to get high.
Employers are now grappling with CBD use by their employees, while also dealing with the rising legalization of recreational and medical marijuana in states across the country.
It’s not clear how many American workers have been disciplined or fired because they tested positive for THC after using CBD products, but there have been instances and it’s a problem that could grow.
Jeanette Hales, a 58-year-old former school bus driver in Salt Lake County, Utah, is one of those cases. Last month, she was told that a random drug test she’d taken for her employer, the Jordan School District, came back positive.
“I knew right then what was going to happen,” says Hales, who had not been using marijuana but taking CBD to help her sleep and relieve stress. “Five days later they called me in and they gave me the option to be fired or to resign.” She decided to quit.
The school district did not respond to a request for comment.
“In some cases, it’s costing employers good employees, and it is creating conflict because you can imagine . the reaction of someone who is saying ‘Well, I actually abided by the rules,” says Howard Mavity, a partner with the Fisher Phillips law firm.
Farm bill spurs big business
A federal farm bill passed in 2018 legalized some cannabis by stating that when the plants contain less than 0.3% of THC, they would be considered hemp. Plants with more than that amount would be categorized as marijuana, which remains an illegal controlled substance.
Sales of hemp-derived CBD products soared after the legislation’s passage.
But only one of those products, a medication to treat two rare forms of epilepsy, has been approved by the U.S. Food and Drug Administration, meaning that many have not undergone federal scrutiny.
A certain amount of THC is allowed in CBD products as long as it doesn’t exceed limits set by federal or state law. But it could still trigger positive results on a drug test, which an employer may say is unacceptable. Some products may also claim to be THC-free but inadvertently contain it.
“Somebody may test positive,” says Barry Sample, the senior director of science and technology for the drug testing laboratory Quest Diagnostics. “It’s not the CBD itself that’s the problem. It’s contamination with THC that may be present in the specimen.”
More than two dozen federal law enforcement employees, for example, have faced disciplinary action after testing positive for THC in the wake of using CBD products, says Don Mihalek, executive director of The Federal Law Enforcement Officers Association, a nonprofit professional association representing more than 26,000 federal officers.
“There’s no way to differentiate between THC in CBD oil and THC in marijuana,” says Mihalek, who added that many officers have turned to CBD products as an alternative to pain medication. But with federal agencies having zero tolerance for positive drug test results “the agencies can’t afford to play a guessing game.”
The issue has drawn the attention of the FDA.
“In addition to safety risks and unproven claims, the quality of many CBD products may also be in question,” the agency says in guidance posted to its site. “Many were found to not contain the levels of CBD they claimed. We are also investigating reports of CBD potentially containing unsafe levels of contaminants.”
Hales, who drove a school bus for 11 years, did her homework before starting to use CBD.
Though the product did not say it contained THC on its label, she went to the brand’s website and learned it contained 0.1% of that compound, which she says was below the level permitted by the state.
And while CBD was never mentioned in the required drug and alcohol awareness class she and colleagues took, Hales says she checked with her trainer, who told her that using CBD products would not cause her to fail a drug test.
A clerk at the store where she purchased the capsules also told Hales the company that made them tested its own employees after they used the product. None of the results came back positive.
“I really thought I chose a safe product for me and for urine testing,’’ Hales says, remembering that on the day she lost her job, the human resources official she dealt with “spoke to me like I was a drug addict.”
She will be cautious in the future as she searches for a new job.
“I know the value of CBD, and it did for me exactly what I needed it to do,” says Hales. But since she lost her job, “I haven’t touched it. And if I ever use it again, it will only be after I’ve secured employment that doesn’t care about a urine test.”
What If weed is legal?
Employers and workers could also feel the effects of the growing number of laws that allow people to use marijuana for medical or recreational purposes.
The District of Columbia and eleven states including California, Maine and most recently Illinois have made it legal for adults to possess small amounts of marijuana for recreational use, according to the National Conference of State Legislatures (NCSL).
Meanwhile, 28 states, along with the District of Columbia have extensive medical marijuana programs. And at least 17 more permit the use of products with a low level of THC to address medical concerns, NCSL says.
Employers are having difficulties navigating the legal changes. Nearly 25% of human resource managers say they “are extremely challenged” trying to comply with the various laws, according to a survey of more than 700 professionals by XpertHR, an online resource for the industry.
Generally, employers can prohibit the use of marijuana on their premises, even if an employee is legally allowed to use it for medicinal purposes. Job applicants, as well as hired workers who test positive for THC, can be denied employment or fired if that is the workplace’s policy.
But increasingly there are some exceptions.
In New Jersey for instance, where medical use of marijuana is legal, there are protections for workers or job applicants who test positive for the drug.
Employers must offer workers or job applicants who test positive the chance “to present a legitimate medical explanation for the positive test result,” or to retake the test at their own expense, according to the statute. Employees can still be penalized for using medical marijuana at work or for being impaired by the drug during work hours.
Similarly, Oklahoma, which permits the use of marijuana medically, says employers cannot discipline or refuse to hire someone solely because they test positive for marijuana. That doesn’t apply however to those who don’t have a health-related reason to use the drug or who have jobs deemed “safety-sensitive.”
To test or not to test?
Given the growing tolerance for marijuana, some say screening for the substance should be optional.
A New York City law says that as of May, employers with at least four people on staff cannot require a job applicant to take a test for marijuana as a condition of being hired.
As legalization becomes more widespread, “it makes absolutely no sense that we’re keeping people from finding jobs or advancing their careers because of marijuana use,” the city’s public advocate, Jumaane Williams, said in a statement.
The law does not override drug testing that is mandatory in collective bargaining agreements or required to get a job with the federal government. It also doesn’t apply to those wanting to work in law enforcement, child care, and other fields where the public or other workers can be impacted.
Despite the rising number of states legalizing the drug, testing workers for marijuana has dipped only slightly nationwide.
The percentage of urine drug tests that included screening for marijuana fell to 97.6% in 2018 from 99.2% in 2015, according to Quest Diagnostics. In states where recreational use of marijuana is allowed, the percentage of such tests dropped to 94.7% from 98.5% during that time period.
But all the legal changes can be confusing for workers, says the Drug Policy Alliance, a national nonprofit that advocates health-centered alternatives to more punitive drug policies.
“Employees are less aware of what is and is not allowed and how legal regulations line up with those of their employer,’’ says Matt Sutton, a spokesman for the organization.
So what actions should employees and employers take in such a rapidly changing landscape?
Read labels: “Clearly employees and applicants that want to use CBD products need to pay close attention to the labels on these products, but it’s still very much ‘Buyer Beware’’’ says Sample.
Workplaces should review their policies: Mavity says that employers should consider updating their anti-drug guidance “warning employees of this issue because it is a very big problem. Studies show a lot of these CBD products are containing THC.”
The Society for Human Resource Management has also offered guidance. “While some states have legalized recreational and medical use of marijuana, it is still illegal under federal law,” says Amber Clayton, director of SHRM’s HR Knowledge Center. “In states where it is legal, employers should ensure compliance with state laws, which may require a review of the circumstances.”
There may also be rules specific to the medicinal use of CBD. “An employer might decide to make an exception to its drug policy if the person has a disability for which he or she uses CBD oil, particularly if he or she is not impaired on the job,” Clayton says.
Give your workplace a heads-up: If you are using such products, alert your employer so there are no unexpected consequences down the line. “We don’t want our members who are trying to do the right thing penalized,” says Mihalek of the Federal Law Enforcement Officers Association. “The simplest thing to do . is go to a doctor, get a prescription and make sure your job’s aware of it.”’
Consider cutting out the CBD while job hunting: Until the products are better regulated, it might be best not to use a CBD product while you’re looking for work, or if you’ve got a job that requires periodic drug tests.