We previously reported a growing number of questions from employers involving employees who have tested positive for marijuana and who claimed the positive test resulted from their use of legal CBD products. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) answered some questions about employers’ reliance on these test results, while leaving other legal issues open.

In Anderson v. Diamondback Investment Group LLC, the plaintiff was a North Carolina employee who was fired after testing positive for marijuana. She sued the employer on a number of claims, including violation of the Americans with Disabilities Act and the North Carolina lawful products statute. She alleged that she used CBD products to treat an anxiety disorder made known to the employer. She claimed that the drug test was an impermissible medical examination under the ADA, and that her use of CBD was protected under North Carolina law.

A split Fourth Circuit panel rejected these claims, affirming dismissal of the lawsuit. The court first recognized that hemp-derived CBD products are legal under federal law even if processing results in THC levels above the 0.3% definition of hemp. Regardless, in this case the plaintiff failed to introduce adequate evidence that she took a legal rather than an illegal THC product. Employers are not required to distinguish between positive results from self-medication with a legal THC product as opposed to an illegal one. The court also concluded that the plaintiff had not demonstrated that she suffered from a disability or that she had disclosed any alleged disability to her employer.

While this decision provides guidance for employers in terms of ADA compliance, it leaves open potential claims under the state lawful products statute. In response to the plaintiff’s claims, the Fourth Circuit said that she had not demonstrated that she had used products legal under North Carolina law. A carefully pled complaint could overcome this hurdle and potentially assert valid claims for violation of state law. While the federal Fourth Circuit opinion is not binding on state courts, they may adopt its reasoning as valid under North Carolina law.

Employers that test for marijuana may want to consider educating employees about the risks of a positive test resulting from use of legal CBD products. North Carolina employers may also decide not to immediately reject employee claims of lawful product use, although how an employee can conclusively demonstrate that they did not use an illegal cannabis product remains to be seen.

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