In recent years, we have advised employers whose employees tested positive for marijuana, but the employee claimed that the positive test resulted from their use of legal CBD oil or related products. Some employers have explicitly warned employees about the risk of using CBD products that contain detectible amounts of THC, the active ingredient in marijuana. What happens, however, when an employee claims that excusing the positive result is a required accommodation under the Americans with Disabilities Act?
In a recent federal district court decision in Louisiana, the judge denied the employer’s motion for summary judgment in a case in which an employee alleged that she was using CBD oil under a doctor’s prescription to treat chronic migraines. The employer terminated her employment after testing positive for THC, citing a government contract that mandated such testing. The employee claimed that excusing the positive test was a form of required accommodation under the ADA.
In her decision, the district court judge concluded that a jury should determine whether the employer should have accommodated this request. She rejected the employer’s argument that the federal government’s listing of marijuana as a Schedule I controlled substance automatically removes persons who test positive from the ADA’s protections. The court also appeared to draw a distinction between CBD and THC, even if the former substance can contain trace amounts of THC.
This decision was made by a district court and does not have a binding effect on other courts or employers. If the matter goes to trial, the jury may conclude that the request to ignore the drug test result was an undue hardship on the employer under the ADA. Regardless, this decision calls into question employers’ assumption that employees who test positive for marijuana cannot claim CBD use as a legal excuse. As more cases on this issue arise, employers should modify their drug testing policies to follow the guidance provided by federal courts.