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What can you do if get fired for cbd oil

Can using CBD products cost someone their job? Here’s what you need to know

It is a hot product that is all the buzz right now, and it’s helped bring relief to tens of thousands of people who suffer from chronic pain and anxiety, but ABC15 is now hearing from Valley residents who say using a full spectrum form of CBD oil cost them their jobs.

PHOENIX — It’s a hot product that’s all the buzz right now, and it’s helped bring relief to tens of thousands of people who suffer from chronic pain and anxiety, but some people say using a full spectrum form of CBD oil cost them their jobs.

CBD, or cannabidiol, is a product that comes from the cannabis plant. Hemp-derived CBD with trace amounts of THC, or tetrahydrocannabinol, has been given the green light for use by the federal government. These products must contain less than 0.3 percent THC — the substance that gives the so-called “high” associated with marijuana.

“I tested positive for THC, and I ended up being put on administrative leave,” said Tammy Allen, who ended up eventually losing her job due to her company’s policy of no drug use.

Allen said she was taking CBD after suffering from seizures and migraines. She was told the product she was using had no THC in it; she even had lab toxicology reports from the company to prove it. So she was completely caught off guard after a drug test revealed positive results for THC.

Allen said she had taken a dose of CBD two days before the drug test.

“It looked as if I had just smoked pot, as if I had just done pot like within a couple of days of being tested,” Allen said.

She had the product tested on her own and found the lab results to be very different from what the company had given to her.

Allen said it was an online CBD company and declined to disclose the name of the business.

Another Phoenix mother, who requested anonymity, told KNXV she also tested positive for THC and almost lost her job. Thankfully, her company let her stay after performing further tests.

The woman said she had deviated from the product she normally used and got a bottle of full spectrum oil from an Arizona smoke shop. She was also told the product didn’t contain THC.

Chris Martin, the owner of Hempful Farms in Phoenix, specializes in CBD products.

“I am going to tell you right now, any full spectrum product that has all of the cannabinoids in it, you’re going to run that risk,” Martin said.

He added that his clients included police officers, transportation workers and airline pilots, and he had warned all of them about the risks of taking a “full spectrum oil” when they came in to buy products.

In eight years of running his company, Martin said he had only heard from two customers who told him they had failed a work drug test.

“I had warned them they ran that risk, but they chose to take it anyway,” Martin said.

A full spectrum CBD oil is one that includes all of the active compounds in the raw hemp, or cannabis plant. Even with oil that contains less than the federally allowed limit of 0.3 percent THC, Martin said users ran the risk of testing positive.

“Any cannabinoid that you’re taking over a period of time can cause a build up. If you’re taking a cannabinoid test, I would avoid putting cannabinoids in my body — even one that says no THC because CBD is CBD. It could convert it if you heated it, it could convert in your stomach. So why run the risk if you’re going to take a drug test? Don’t put things in your body that could cause you to fail,” Martin said.

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Staff working at drug treatment centers said they often heard from addicts in recovery who wanted to take CBD products, saying it helped them handle withdrawal symptoms.

Chris Riley, a compliance officer at the Crossroads Substance Abuse Treatment Center, said he always warned his staff and clients to err on the cautious side.

“Without having any studies, having any research, we really don’t know what the long-term or short-term effects will be,” Riley said.

Across town at A Better Today Recovery Services, clinical manager Eboni Fields fielded the same question from her clients. Her advice?

“Everything needs to go through the doctor when it comes to any type of medication. Also, know who the provider is, where (you’re) getting the CBD from,” she said.

Martin advised those who were using CBD to research the companies they were purchasing the products from closely. They should be able to provide you with toxicology results. Ask them questions. If you sense any hesitation, you may want to consider another company, said Martin. He added that a good company would care about a customer’s well-being more than a quick sale.

“It does me no good if you don’t come back because you failed a drug test, or lost your job, or the product doesn’t work. That does our company no good at all,” Martin said.

KNXV asked Martin if stories like the one you are reading could hurt his business.

“No, I want these stories to come out. How many people are out there making this product in the backseat of their car and not testing it?” Martin said.

He advised those worried about losing their jobs to consider taking a CBD isolate or distillate product, in which most of the other substances except for the CBD are removed.

Unfortunately for Allen, despite the relief her CBD oil gave her, she is no longer using the product as she fears to lose a job again.

“To test positive for something you know you didn’t do, and to try to convince everybody you didn’t do it, that’s a horrible feeling,” she said.

It is also a good idea to talk to your company’s human resources department or supervisors about using CBD on the job. Some workplaces may allow it; others may have a stricter policy. The woman who chose to stay anonymous said her company is allowing her to remain on the job. She has now switched to a CBD isolate product, instead of taking the full spectrum oil.

Copyright 2019 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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.

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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.

Takeaways

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.
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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.