The policies surrounding employees’ use of cannabis, CBD, and THC products in the workplace are evolving. Many states are enacting law to allow medical and/or recreational use of cannabis. In today’s blog, our employment law attorneys will discuss what claims, including wrongful termination, may arise from employees being fired for marijuana or related product use.
To understand an employee’s rights regarding the use of cannabis, CBD, and THC products, we need to start with the basics.
What does employment-at-will mean?
Employment-at-will is a legal doctrine that generally governs the employment relationship in all 50 US states. It refers to the principle that either the employer or the employee can terminate the employment relationship at any time, for any reason, and without prior notice, as long as the reason is not illegal or in violation of an employment contract. Under the employment-at-will doctrine, an employer can terminate an employee’s job without providing a reason, as long as the termination does not violate any federal, state, or local laws. Likewise, employees are generally free to resign from their positions without having to provide a specific reason or advance notice.
Thus, for example, employers can fire employees for having untied shoes, being left-handed, or refusing to work a shift from 1 a.m. to 3 a.m. These are all very stupid reasons for firing an employee, but they are legal. To find a basis to sue for wrongful termination, employment law attorneys look for statutes the employer violates, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), or Family and Medical Leave Act (“FMLA”), for example. Thus, to find a claim for wrongful termination arising out of a failed drug test, an employee has to point a specific law that was violated.
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Are there any federal laws that protect employees from being fired for cannabis and THC use?
No. Although laxly enforced, cannabis is still illegal on the federal level in the United States. The federal government still classifies cannabis as a Schedule I controlled substance under the Controlled Substances Act (CSA). Since it is technically illegal to even possess cannabis or marijuana on the federal level, employers will not be held liable for firing employees for engaging in illegal activity under federal law – especially under an employment-at-will standard.
Because cannabis and THC are still illegal, employers are not required to consider them to be a reasonable disability accommodation under the ADA.
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Are there any state laws that protect employees from being fired for cannabis and THC use?
Every state is different, and you should contact a lawyer in your state for specific information.
Let’s look at Ohio for an example. Even though Ohio legalized medical marijuana for individuals with a valid prescription from a physician in 2016, employers have the right to enforce drug-free workplace policies and prohibit employees from using medically prescribed marijuana. Ohio’s cannabis statute explicitly includes provisions to protect employers and directly provides that employers are not obligated to accommodate employees who want to use, possess, or distribute medical marijuana – even for disability reasons. Employers can reject job applicants based on their use, possession, or distribution of medical marijuana. Employers are also directly permitted under Ohio’s statute to establish drug-free workplace programs and terminate employees who violate the employer’s drug-free policy. Additionally, Ohio employers can defend against workers’ compensation claims if the use of medical marijuana contributed to causing an injury.
On the other hand, the New Hampshire Supreme Court held that the use of prescribed cannabis or marijuana can be a reasonable accommodation in some circumstances under its state version of the ADA.
Connecticut has a medical marijuana legislative program called the “Connecticut Palliative Use of Marijuana Act” (CPUMA). The CPUMA allows qualified patients to use medical marijuana for certain debilitating medical conditions. Under the CPUMA, patients with specific qualifying conditions, such as cancer, glaucoma, epilepsy, or chronic pain, can register with the Connecticut Department of Consumer Protection and obtain a medical marijuana card. Registered patients are then allowed to purchase and use medical marijuana from state-licensed dispensaries. Under CPUMA, employers in Connecticut are generally not prohibited from taking action, including termination, against employees who use medical marijuana. However, the Connecticut Supreme Court ruled in 2018 that employers are not obligated to accommodate medical marijuana use in the workplace.
In Barbuto v. Advantage Sales & Mktg., 477 Mass. 456, 78 N.E.3d 37, 47-48 (Mass. 2017), the Supreme Judicial Court of Massachusetts reversed the dismissal of employee’s state law disability discrimination claim because employee’s medical marijuana use in compliance with state law was not “facially unreasonable as an accommodation.”
In Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1229 (D.N.M. 2016), the United States District Court for the District of New Mexico held:
the New Mexico Human Rights Act does not provide a cause of action for Mr. Garcia as medical marijuana is not an accommodation that must be provided for by the employer. Tractor Supply did not terminate Mr. Garcia because of his serious medical condition, as marijuana use is not a manifestation of HIV/AIDS, nor is testing positive for marijuana conduct that resulted from Mr. Garcia’s serious medical condition. While New Mexico state courts have found medical marijuana to be compensable under state workers’ compensation laws, the Court finds a fundamental difference between requiring compensation for medical treatment and affirmatively requiring an employer to accommodate an employer’s use of a drug that is still illegal under federal law.
Given the variances between various state laws, it is important to consult an employment law attorney about your rights.
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Given that CBD use is not illegal, can my employer fire me for using CBD products?
CBD, which stands for cannabidiol, is a compound present in marijuana that does not cause intoxication or a “high.” It can be derived from hemp or non-hemp plants, with hemp defined as cannabis sativa containing no more than 0.3% THC, the psychoactive component of marijuana. In 2018, the U.S. Congress passed the Agriculture Improvement Act, removing hemp from the federal Controlled Substances Act and effectively legalizing CBD derived from hemp. However, the legality of CBD products varies among states, as some states have not updated their controlled substances acts to exclude hemp. CBD is widely marketed in various consumer products, including foods, oils, lotions, capsules, and cosmetics.
The law in this area is still developing, but there is no outright protection for any employee to use CBD products. Instead, any protection that might flow to take CBD products would be under the ADA for disabled employees. There are very few cases that address this issue. In Huber v. Blue Cross & Blue Shield of Fla., Inc., No. CV 20-3059, 2021 WL 1023052, at *4 (E.D. La. Mar. 17, 2021), the United States District Court for Eastern District of Louisiana held on this point while denying to dismiss the complaint at the pleading stage:
Plaintiff engaged in a protected activity by seeking an accommodation requesting that she be allowed to use hemp-derived CBD oil to manage her migraines. Plaintiff argues that BCBS interfered with her rights when Brantley informed her that her job was on the line when they received her drug screen results, when in response to her email documenting her CBD oil use, Brantley informed her that her documentation was very thorough and that her job was safe, and when Syrmis assured her that her physician-recommended use of CBD oil would alleviate any concerns with her drug test, and despite these communications, she was terminated. Enforcing a policy in a way that penalizes a disabled employee for availing herself of a reasonable accommodation for her disability interferes with the employee’s ADA rights. Accepting plaintiff’s allegations as true, Huber has adequately pleaded an interference claim against BCBS.
The same Court in denying the employer’s motion for summary judgment held:
The court finds that the accommodation sought by plaintiff, that she be allowed to use CBD oil to control her migraines, necessarily implies that a false positive caused by the CBD oil would not be held against her. Thus, for the accommodation to be reasonable, defendant must provide some way to account for and excuse a false positive. The court finds that fact issues exist as to whether this occurred. While defendant argues that it provided an opportunity for plaintiff to explain her positive result, and she submitted additional documentation in response, the record is not clear that defendant actually considered her explanation. Dr. Simo apparently did not consider plaintiff’s individual characteristics, beyond her medication list, in determining that her test result was consistent with marijuana use, and not with CBD use. No basis is provided for Dr. Simo’s reliance on a maximum 15 ng/mL cutoff, which is considerably below the Louisiana statutory cutoff, or his conclusion that plaintiff’s 90 ng/mL result, which is within the Louisiana statutory range, is a definitive positive result. Without a good faith consideration of plaintiff’s explanation for the positive test result, and full consideration of all relevant facts, defendant’s “allowance” of plaintiff’s use of a legal medication that may cause a false positive drug result is not a reasonable accommodation. The record before the court does not establish that such a good faith consideration of all relevant facts occurred, and thus defendant is not entitled to summary judgment on the failure to accommodate claims.
Huber v. Blue Cross & Blue Shield of Fla., Inc., No. CV 20-3059, 2022 WL 1528564, at *5 (E.D. La. May 13, 2022) (footnotes omitted).
Most recently in Lehenky v. Toshiba America Energy Systems Corporation, No. 22-1475, 2023 WL 3562981 (3d Cir. May 19, 2023), the United States Court of Appeals for the Third Circuit provided good insight into what actions an employee should take. For 18 years, Cherie Lehenky worked for Toshiba, who had a strict no drug policy. In 2018, Lehenky was diagnosed with an inflammatory autoimmune disease after experiencing prolonged physical discomfort and pain. This condition caused tissue damage and fluid buildup in her legs, leading to her reliance on a cane for walking. Seeking relief from her condition, Lehenky explored various remedies, including topical treatments. When those proved ineffective, she decided to consult her doctor regarding the potential use of cannabidiol (CBD) oils. On February 5, 2019, Toshiba chose Lehenky for a random drug screening. Prior to the test, Lehenky disclosed to a human resources employee that she was taking an over-the-counter supplement that could potentially yield a positive THC result, but importantly, she did not disclose her medical condition at that time. Following the drug test, which indeed showed a positive result for THC, Toshiba promptly terminated Lehenky’s employment solely based on that outcome.
The United States Court of Appeals for the Third Circuit dismissed her complaint, holding:
To prevail on a disability discrimination claim, Lehenky must allege three elements: she was disabled; she was qualified for the job; and she suffered discrimination because of her disability. Gibbs v. City of Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021). For the third element, Lehenky must plausibly allege that she was terminated “as a result of discrimination” to survive a motion to dismiss. … Lehenky alleges that “the drug screen came back positive for THC, and on that sole basis Ms. Frank immediately terminated Plaintiff’s employment.” … Lehenky has committed to her theory that her positive drug test was the only cause of her termination.
Lehenky’s own pleadings and argument preclude a disparate treatment claim. … She did not allege that Toshiba knew of her disability. According to the complaint, she tested positive for THC, and Toshiba believed that the only explanation was illegal drug use. Lehenky alleges Toshiba was wrong. But being wrong does not mean that Toshiba discriminated on the basis of a disability. … We cannot conclude that Toshiba terminated Lehenky’s employment because of a disability of which it was unaware and did not consider when it terminated her employment. Instead, we credit the allegation in the complaint that Toshiba fired Lehenky because it thought she was using illegal drugs. The District Court correctly dismissed the disparate treatment claims.
Id. at *2-3.
The lesson to be learned from Lehenky is that the employee should preemptively disclose the disability and request for a disability accommodation to use CBD oils (or other cannabis products), triggering the employer’s obligation to engage in the interactive process. Of course, employers do not have to provide the employee’s requested accommodation to use CBD products and can provide a different accommodation of its choosing.
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Can drug policies be enforced in a discriminatory manner?
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminatorily enforcing policies, procedures, or rules based on employees’ race/color, gender, gender identity, sexual orientation, national origin, and religion. Thus, an employer cannot select only Hispanic employees for drug tests or immediately fire Black employees for failed drug test while giving white employees warnings or other progressive discipline. Likewise, under the age discrimination provisions of the Age Discrimination in Employment Act of 1967 (“ADEA”), employers cannot permit the 20 something computer programmers to use medical marijuana but fire the 62-year-old secretary for testing positive of THC. Moreover, under the ADA, employers cannot fire only disabled employees that test positive.
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Do I have a claim for wrongful termination after testing positive for marijuana use?
If you were fired today after testing positive on a drug test, it would be best to call the right attorney to schedule a free and confidential consultation regarding your specific situation and legal rights. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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This employment law website is an advertisement. The medical marijuana, HTC, CBD, wrongful termination, disability discrimination, ADA accommodation, and race discrimination materials in this blog are for informational purposes only and should not be viewed as giving you direct legal advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.