The laws regarding employee use of CBD products and the potential for a positive test for marijuana use have repeatedly been questioned by employers across the country, and the legal landscape has remained complicated. However, an Indiana-based federal court has taken a new look at the issue in the case Rocchio v. E&B Paving. In this case, the court dismissed a lawsuit filed by an employee who alleged his termination for alleged CBD use violated the Americans with Disabilities Act (ADA).
The plaintiff was employed as an engineer and was subject to random drug testing, including for marijuana.
Under the employer’s policy, an employee could be subject to termination as the result of a positive drug test. Learn More
In 2019, the plaintiff was subjected to a random drug test that resulted in a positive test for marijuana.
The plaintiff claimed that he informed the administrator of the test of his use of CBD oil; however, there is no proof that this information was ever given to the employer. As a result of the test, the employer chose to terminate the employee, who then filed a lawsuit alleging violation of the ADA due to both the termination and subsequent failure to rehire.
The plaintiff argued that though an employer may prohibit the use of illegal drugs, it had discriminated against him by taking adverse employment action against him due to his use of a legal drug. Under the ADA, an employer is permitted to forbid the use of and test for illegal drugs. The plaintiff argued that by testing for and banning the use of a legal drug such as CBD rather than an illegal one such as marijuana, the employer had thus violated the ADA. However, the court did not agree.
First of all, the court found that the testing administrator was not testing for CBD oil, and the plaintiff had not presented any evidence to show they were aware the positive result was due to it. Secondly, the court found that just because the ADA does not explicitly permit a ban of or testing for legal drugs does not mean that it prohibits it.
The plaintiff also claimed that the employer’s policy of terminating all employees based on a positive test was also discrimination based on a disability under the ADA. The logic of this claim is that the ADA prohibits discrimination against an individual based on a perceived disability regardless of whether such an individual is disabled in actuality. By regarding individuals who test positive as a user of an illegal drug and, as a result, a safety concern, the plaintiff argued that this means the employer regards the worker as mentally impaired.
The court rejected this argument finding that a zero-tolerance drug testing policy for safety reasons does not mean that an employer believes every employee who tests positive has an impairment under the ADA. The court concluded that even if the defendant believed that some employees would have an impairment, the plaintiff must show that the employer did believe that he was impaired and terminated him accordingly. Further, the court noted that an employer is not required to permit unacceptable behavior such as the use of illegal drugs, even where it is prompted by a disability.
As a result, the court found that no reasonable jury could infer a violation of the ADA on either of the employee’s claims. Thus, the court granted the summary judgment to the defendants.
Knowledge is power, and learning is the first step. If you’re interested in more information on fair chance hiring, check out our resource, Adverse Action Notice Protocols in Compliance With FCRA
