CBD Oil Use Results in Positive Drug Test and Employment Termination

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In a recent case, the employer won their motion for summary judgment following termination of an employee due to a positive drug test for marijuana that was a result of CBD oil use. 

As background for the case, the employer requires all employees to submit to random drug testing which includes testing for marijuana through its third party administrator. Whenever a positive marijuana test occurs, that employee is terminated.

The plaintiff in this case was an employee who submitted to a random drug test and was terminated when the results returned as positive for marijuana metabolites (reported to the employer as positive for marijuana). The plaintiff claims the test resulted not from marijuana use but from CBD oil. Following his termination, he submitted a grievance to the Union per the collective bargaining agreement in place which was ultimately not filed. He then brought suit and included a claim the employer violated the Americans with Disabilities Act (ADA).

Analyzing the ADA, the court found that no reasonable jury could find the plaintiff’s employment was terminated because of a perceived impairment or disability and not because of the positive drug test. The court further disagreed with the plaintiff’s argument that the employer violated the ADA by taking action based on the positive drug test for CBD oil, which is a legal substance, as the ADA does not explicitly permit bans of “legal drugs or testing for legal drugs.”

Even if the plaintiff’s argument was accurate, the court pointed to the employer’s lack of knowledge at the time of termination that the test was positive for CBD oil as they were told by the third party administrator that the test was positive for marijuana. Further, the employer treated all positive drug tests consistently and no other evidence was presented that would support a disability discrimination claim. 

The drug testing landscape continues to become more complicated, and the issues presented in this case are rather novel given the use of CBD oil and resulting drug test. Employers should review this case with their legal counsel to determine what, if any, actions may need to be taken with respect to their drug testing and workplace policies.

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