This country’s relationship with cannabis is a complicated one, and as is often the case in complicated matters, words matter. Marijuana and hemp are different strains of the Cannabis sativa L plant. So, “cannabis” is a scientific term, not a legal one.
Although the Controlled Substances Act historically made no distinction between marijuana and hemp, in 2018 the federal government defined “hemp” as any part of the Cannabis sativa L plant, including all derivatives and extracts such as cannabidiol (CBD), provided that the plant contains less than 0.3% tetrahydrocannabinol (THC). Any Cannabis sativa L plant or derivative from such a plant with a higher THC level is considered “marijuana,” which remains a Schedule I substance – the most stringently regulated category of narcotics – under the Controlled Substances Act. Because THC is the psychoactive ingredient in marijuana that produces the feeling of being “high,” a critical difference between marijuana and hemp is that hemp will not produce a “high.” In short and for relevant purposes below, hemp-derived CBD is legal to possess under federal law (and the law of most states), whereas marijuana is federally illegal.
Sounds simple? Maybe. But what happens when an employee uses hemp-derived CBD – which under federal law may contain up to 0.3% THC – and then tests positive for THC. A federal court in Louisiana recently offered a glimpse into what comes next. In Huber v. Blue Cross & Blue Shield of Fla., Inc., a federal court in Louisiana denied summary judgment for an employer who terminated an employee who failed a marijuana drug test after taking a CBD product.
Background on the ADA and Marijuana
As we discussed a few weeks ago, marijuana is still a Schedule I drug under the federal Controlled Substances Act, meaning that it is illegal under federal law. As a result, the ADA, which provides that illegal drug use is not protected, does not protect individuals using marijuana, even for a medical purpose. Therefore, the ADA does not protect medical marijuana users, and you generally may terminate employees who fail a drug test for marijuana, have marijuana on their person at work, or are under the influence of marijuana while on the job (but be sure to check your state legalization laws for anything to the contrary).
What about CBD and THC? You can purchase CBD legally in all U.S. states, but most states still have laws making THC (the psychoactive component in marijuana) illegal, especially without a prescription. However, CBD can trigger a positive drug test. Hemp-derived CBD may contain low levels of THC that show up on a drug test. The Eastern District of Louisiana tackled this very issue in considering if the ADA protects an employee when a positive drug test may have been triggered by CBD use.
In Huber, the plaintiff, Michelle Huber, suffered from chronic and severe migraines to the point of disability. Her doctor recommended that she use “non-psychoactive” CBD oil. The CBD oil greatly improved her symptoms and even her work performance. Huber’s employer, Blue Cross and Blue Shield of Florida (BCBSF) was aware she was using CBD oil for her migraines. Two years later, Huber had to take a drug test as part of her work on a federal contract. Although Huber said she had never used marijuana or any other substance containing THC, she reminded BCBSF of her CBD use (and her doctor testified that her CBD use could result in a positive test even though she was not using THC). Huber also pointed out that she was no longer covered by the federal contract and should not be subjected to drug testing. Nonetheless, BCBSF required her to submit to the drug test, and she got a positive result for THC. BCBSF terminated her employment for the positive test.
Huber filed suit, claiming that BCBSF violated the ADA by terminating her employment because of her disability and by failing to accommodate her disability. BCBSF filed for summary judgment, arguing that Huber was not a “qualified individual” because she could not perform an essential function of her job – passing a drug test. BCBSF also argued that the reason for her termination was not her disability but, instead, her positive drug test. The court denied summary judgment, holding that there were too many factual issues on three important questions:
- Whether Huber was a qualified individual
- Whether BCBSF terminated Huber because of her disability
- Whether it was a reasonable accommodation for BCBSF to allow Huber’s use of medically prescribed, non-psychoactive CBD oil to manage her migraines but then firing that same employee when she received a positive drug test and was not allowed to explain the potential reason for the positive test
Importantly, the court noted that CBD is “a legal medication that may cause a false positive drug result.” Additionally, the court found it important that BCBSF gave an “allowance” for the employee’s CBD use and then did not allow her to explain a positive THC test due to that very CBD usage.
Only time will tell whether this case is an outlier or the beginning of a new legal trend. But it is clear that courts are taking notice of the distinction between CBD and THC. Things to keep in mind:
- Be careful about terminating employees for one positive drug test for THC when you know the employee openly uses CBD.
- Think about whether an employee’s use of CBD is a reasonable “accommodation” under the ADA. Whether it is or is not a reasonable accommodation will depend on the facts of each case.
- Remember that actual marijuana usage is not protected under the ADA because marijuana is illegal under federal law. Generally, employers are free to continue prohibiting and disciplining for marijuana — just be careful about positive tests that may be attributed to legal CBD use.
- Update any job descriptions for positions that require drug testing as an essential job function.
- Finally, always remember to engage in the interactive process with any employees seeking reasonable accommodations for a disability.