But I Didn’t Inhale! Employee Drug Tests in a CBD World | Bradley Arant Boult Cummings LLP

With the explosive growth of cannabis products and the rising number of states that have legalized marijuana for medical or adult use (nearly 40 at last count), employers across the country are asking if they can fire an employee who tests positive for marijuana . What if the test shows marijuana metabolites, but you later find out it was positive for CBD oil (which is generally a legal substance)? Does federal law protect a worker in any way in this scenario? In the case of Rocchio v. E&B Paving, LLC, an Indiana federal district court dealt with this matter under the Americans with Disabilities Act and found no federal legal protection for the employee’s use of CBD oil.

Just the facts

E&B prohibited the use of illegal drugs in their workplace, citing safety concerns as the reason for the policy. It used a third party to run random tests. E&B pursued a zero-tolerance policy and immediately fired employees who tested positive. One of the banned drugs E&B tested for was marijuana.

Employee John Rocchio’s number came up, he took his drug test, and the test revealed marijuana metabolites in his system. The outside testing administrator notified E&B that Rocchio had tested positive for marijuana, and E&B terminated its employment. A simple example of prohibited behavior and consequences, right? Not so fast, said Rocchio.

Rocchio went to his union, the International Union of Operating Engineers Local 103, to complain. He eventually filed a complaint and met with the CEO, John Ballard, and two business representatives. Rocchio testified that the union officials dismissed his complaint. They told him that the additional drug tests he took after he quit didn’t matter (at least in part because those results could have been caught up, and without one

negative result from the “split sample” (ie the control sample from his drug test), “there was nothing they could do”. Under the rules, the union can decide not to pursue a grievance, after which the worker can appeal the decision to the board or lodge a personal grievance. Rather than appeal or file his own complaint, Rocchio gave up.

You can’t fire me for using CBD oil!

Rocchio said he didn’t use marijuana, and the positive test was because he used CBD oil (aka cannabinoid oil), a legally sold hemp extract. E&B relied on the drug test result rather than Rocchio’s plea of ​​innocence and did not get him back to work.

Rocchio filed a lawsuit against E&B and the Union. The first allegation was that E&B breached the collective agreement and the union was alleged to have breached its duty of fair representation. The second allegation was that E&B violated the ADA by terminating him and not rehiring him.

Rocchio loses on his hybrid Section 301 claim. . .

The district court first dealt with Rocchio’s breach of contract and duty of fair representation claim, known as a Section 301 hybrid claim. This type of hybrid claim under Section 301 is difficult for the plaintiff — in order to succeed against either defendant, a plaintiff must fight both claims succeed. In this case, the district court began by questioning whether Rocchio could succeed against the Union, and found that it could not.

Before Rocchio could bring a hybrid Section 301 complaint, he first had to exhaust his union remedies. In this case, Rocchio made no complaint. When union officials rejected his claims, Rocchio could have either appealed to the executive committee or made a personal complaint. He didn’t do either. The district court found that Rocchio’s lack of persistence was fatal to his claims against the union and thus to his hybrid Section 301 lawsuit.

. . . and its ADA claim

In considering the ADA lawsuit, the court began with the facts indisputable: Rocchio tested positive for marijuana, and E&B fired him because of the positive test. The court ruled that “no reasonable jury could find that he was fired because of a perceived impairment and not because he tested positive.”

Just because the ADA doesn’t say employers can test for legal substances (like CBD oil) doesn’t mean they can’t. According to the report, Rocchio argued:

Because the ADA specifically allows covered entities to prohibit and test for illegal drug use, 42 USC§ 12114(c)-(d), but does not specifically permit prohibitions on legal drug use or testing for legal drug use, it follows that that “it violates the ADA” for a company to take adverse action against an employee who tests positive for using CBD oil, a legal substance.

Clever, but the court didn’t agree. First, the court found that the ADA’s lack of express permission for a company to ban the use of legal substances does not mean that the ADA prohibits such a ban. As we all know, a company can terminate an employee for any reason, fair or unfair, as long as it is not illegal. Also, E&B didn’t test for CBD oil — it tested for marijuana. The court noted that Rocchio presented no evidence that when E&B terminated Rocchio, it knew that the positive test result was due to CBD oil and not marijuana. The external test administrator’s report reported marijuana metabolites – not CBD oil.

And no indication of a perceived disability

Rocchio argued that E&B considered him disabled. Under the ADA, a person need not actually be disabled to make a claim. Instead, a plaintiff can seek to prove that he was considered disabled – that the employer discriminated against him “on the basis of an actual or perceived physical or mental disability”.

What was his evidence that he was “considered” disabled?

Mr. Rocchio’s only evidence of discrimination is his argument that the Defendants’ policy of terminating employees who test positive for drugs “categorically” “considers” them users of illegal drugs and because the Defendants cite safety concerns as the reason for the policy , as such they have an impairment under the ADA.

Not so fast, the court said. First, just because E&B has a drug testing policy for safety reasons doesn’t mean it automatically believes that any employee who tests positive has an ADA impairment. Even though E&B thought some staff who tested positive will have a disability, that doesn’t mean they all assume they are disabled. Rocchio had to show that E&B thought he had a handicap. Second, an employer must “not tolerate unacceptable behavior” — such as testing positive for an illegal drug — “even if that behavior is prompted by an employee’s disability.” Finally, Rocchio had no other evidence of disability discrimination. Although two people (one an E&B employee) told him they were sorry to hear about his drug addiction, he had no evidence that these people based the comments on anything other than “word of mouth” and speculation.

The court found no ADA violation and granted E&B’s motion for summary judgment.

snack

This case raises interesting questions for employers, employees and manufacturers of CBD products. Rocchio says he engaged in legal off-duty behavior and it got him fired. If he has legal protection, this court has held, then he is not under the ADA. The facts the court seemed to find most helpful to the employer were:

  • The employer did not designate the employee for testing – it was random and an external administrator took care of it.
  • The report to the employer was that the employee tested positive for marijuana metabolites. There has never been a report of CBD oil or any other legal substance.
  • The employer consistently fired employees who tested positive.

So what can we learn from this case?

First, employers can continue to test for illegal drugs and fire employees who test positive for them. The ADA specifically allows drug testing. As always, it is best to have a third party do the testing and have that third party provide the various explanations for the positive tests. This will discourage you from asking questions about possible disabilities. In this case, the employer was also prevented from making a decision as to whether the employee’s use of CBD oil gave a false positive result for marijuana.

Second, make decisions based on the facts you have and not on speculation about whether or not an employee may have a disability. In this case, the plaintiff had no evidence that his employer thought he or anyone else who tested positive was disabled. Make sure your managers and HR people don’t suggest otherwise.

Third, a drug test can report CBD oil as positive for marijuana. Employers may want to warn workers about this potential. If an employer does not wish to terminate CBD oil users, they should consider steps to avoid this scenario, perhaps requiring CBD users to disclose use before testing (like a prescription drug). Some employers treat medical marijuana like any other prescription drug, so a similar treatment of CBD oil would make sense. For their part, employees may want to consider proactively disclosing their use of CBD products so that when they find themselves in the role of Rocchio it seems more like an explanation than an apology.

Prudent manufacturers and sellers of products containing CBD will take note of these cases and others like them. It has become fashionable for CBD suppliers to make claims about the products’ contents and ability to pass a marijuana drug test even when using the product. Any person making such an allegation had better be sure that it is accurate, as employees may well rely on them if they are subject to disciplinary action despite such allegations.

One day, hopefully soon, there will be widespread access to nuanced cannabis testing that will eliminate the scenario in the Rocchio case and in cases across the country. Or maybe cannabis laws are evolving in such a way that the issue is largely moot. Until then, however, everyone involved must proceed with caution. Given the stakes, there’s no substitute for digging in and learning the rules of the road.