Here’s when you may have to accommodate an employee’s use of CBD

A few weeks ago, I blogged about a situation involving an employee who used CBD products and tested positive for marijuana at work. She claimed that the employer took into account her underlying disability when it terminated her employment and violated the Americans with Disabilities Act. The employer countered that it did know she was disabled. So, the employer won.

But, now, let’s change the facts.

In this case, the plaintiff suffered from migraines for many years. The defendant knew about the employee’s physical ailment — it had provided her with lots of Family and Medical Leave Act leave over the years.

At some point, the plaintiff’s doctor prescribed her CBD oil to help manage her migraines. And it worked! The plaintiff’s health improved, and so did her performance at work. It’s a win-win!

Except, here I am blogging about this situation. So, someone bungled something. Here’s what happened (allegedly).

At a June 2019 meeting, the company advised that employees working on a particular government contract would need to drug test, but no one would lose their jobs because of the results.

Plaintiff’s supervisor instructed the plaintiff to take the drug test, even though the plaintiff was not part of this particular assignment. The plaintiff reminded her supervisor of her disability and the various medications she took due to her disability, including CBD oil. The supervisor told her to “play along,” and she would not lose her job based on the drug screen results. He also informed her that the recommendation from her doctor for the CBD oil would alleviate any concerns with the drug test results. Plaintiff complied with her supervisor’s advice and submitted a drug test at the defendant’s direction.

Enter HR.

After the plaintiff took her drug test, someone in employee relations called the plaintiff and informed her that they had received her drug test results and that the plaintiff’s job was at risk. The same day, the plaintiff e-mailed HR a copy of her doctor’s recommendation for the CBD oil and a letter from her doctor regarding the use of CBD oil for her disability. According to the plaintiff, HR stated that the information plaintiff supplied was very thorough and assured her that her job was safe.

Except, the defendant promptly fired her for testing positive for marijuana.

Does this sound a little like disability discrimination to you? It did to the court. Here’s why.

First, there was a fact issue as to whether the defendant should have drug tested the plaintiff in the first place, and the record did not establish that she was actually under the influence of marijuana when she tested positive. Second, the court noted that getting rid of the plaintiff would have saved the company about $700,000 in medical expenses relating to her migraines. Therefore, the plaintiff’s disability could have motivated the defendant to terminate her employment. Third, the defendant had consented to the plaintiff’s use of CBD oil, which implied that the defendant would account for a false positive. Her supervisors had precisely reassured her on this point.

The court denied the defendant’s motion for summary judgment and sent the plaintiff’s disability discrimination claims to a jury for these reasons.

Employer takeaways

1. Consider whether to require drug testing in the first place. Who cares whether employees use CBD oil or THC, for that matter, as long as they come to work unimpaired.
2. Make clear to your workforce if you are going to drug test and have zero tolerance for positive test results.
3. The ADA does not require exceptions for individuals who use products that may contain THC. But the ADA doesn’t prevent it either.
4. Particular state and local laws may require accommodations for medical marijuana outside of work. Other state and local laws may raise the bar for terminating someone who uses recreational marijuana outside of work.