A CBD user drug tests positive. Do we have to excuse it? Is she actually disabled?

The EEOC has guided employers to accommodate employee use of certain prescribed medications, and excuse failed drug tests that reflect the presence of those drugs — if it is done safely — because those individuals who test positive likely have an underlying disability.

But, when employee self-medicate — like with CBDs for stress and anxiety — not only is there no duty to accommodate, the employee may not be able to establish an underlying disability.

Here is an example from a recent federal court decision in which an employee took three drug tests when her employment began. The first was positive, the second inconclusive, and the last positive. She told the employer that she was using CBDs to manage anxiety, had a service dog, and could get a note from her doctor. But before she did, the employer fired her for failing the drug tests.

So she sued for disability discrimination.

And the employer’s defense was basically, “What disability?”

To advance her case, the plaintiff needed evidence to reasonably infer that she is an individual with a disability, i.e., an individual with “a physical or mental impairment that substantially limits one or more major life activities.”

The plaintiff tried to make this argument four different ways but failed each time.

1. She testified at deposition that she told her nurse that she took CBD oil for anxiety and pain. But, her words are not probative of whether she has a disability.
2. The plaintiff finished a letter from her nurse acknowledging what the plaintiff told her about the CBS use. But the letter did not contain any official medical diagnosis.
3. The plaintiff prepared an affidavit describing how her anxiety affects her. But these were mere conclusory statements — just the plaintiff’s opinion untethered to any specific facts, medical evidence, or other competent evidence.
4. She showed the court an email in which she explained to the defendant that she had a service do, a history of trauma, and could get a doctor’s note. However, the email did not disclose the current disability. Further, the fact that she had a service dog was not dispositive of an underlying disability. Moreover, a mere offer to get a doctor’s note does not manifest an underlying disability.

The defendant prevailed here. But other employers not want to follow this blueprint where CBD/medical cannabis is legal or in other situations where the use of prescribed medicine can show up on a drug screen. An employer should allow anyone subject to drug testing to provide information about lawful drug use that may cause a positive drug test result. An employer may ask all people who test positive for an explanation. Additionally, individuals may qualify for a reasonable accommodation for the underlying disability or if prescription medicine interferes with everyday functioning, as long as neither creates a safety risk.

Or don’t drug test, unless you have to.