Can an employee legally be fired for using over-the-counter CBD products?

Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case dismissed.

So, let’s talk about how and why.

According to the plaintiff’s complaint, she had a disability for which she used an over-the-counter CBD product. It appears that her doctor suggested that she use the CBD product. (It’s not clear whether the doctor prescribed CBD.)

Problems arose when the defendant randomly selected the plaintiff for a random drug test. The plaintiff took the test, at which time she learned that the over-the-counter CBD would cause a positive result. After taking the test that day, the plaintiff emailed the defendant to determine what “documentation” she needed to provide regarding her CBD use. The defendant did not respond.

Sure enough, the plaintiff’s drug test came back positive for THC the next day, and the defendant fired her immediately for illegal drug use. The plaintiff then sued for disability discrimination under the Americans with Disabilities Act.

Now, here’s the thing with the ADA. It does not protect employees from the illegal use of drugs. (CBD products may contain THC).

The ADA does protect CBD users from discrimination based on any underlying disability. But here’s the rub. Suppose the employer doesn’t know any underlying disability. Then, a firing after a positive drug test can’t result in a viable ADA claim.

In this case, the defendant did not know that the plaintiff had a disability — at least not until after the defendant got the test results. Maybe, it never knew.

Plus, the defendant had a good drug test policy. The policy stated that any employee taking prescription or over-the-counter drugs that could be considered “illegal” must provide advance documentation identifying the medication and dosage. Otherwise, the company would deem the drug “illegal,” and “failure to report the use of such drugs to HR may result in disciplinary action, up to and including termination.”

The plaintiff claimed to have used CBD for a while before her random drug screen. But she did not inform the defendant before her drug test. Instead, she provided a doctor’s note post-test. Had the plaintiff followed the policy, the defendant might have given her a pass on the negative results. Instead, when the plaintiff tested positive for illegal drugs (THC), the defendant had no reason to believe she used legally prescribed drugs.

Of course, your mileage may vary depending on the state/city in which you operate and the unique facts and circumstances surrounding a positive drug test involving CBD. But, in many instances, you can fire someone simply because they test positive for marijuana.

(That said, unless you operate in an industry that requires drug testing, why bother? But that’s a post for another day.)