There is a lot to unpack in the Lehenky v. Toshiba America Energy Systems
Corporation,  Case No. 20-4573 (E.D. PA, February 22,
2022) case as it answers two very interesting questions.
First, does CBD register on a drug screen as THC, and can employees
be terminated for using it? Second, is an employer test for
prescription drugs an illegal medical inquiry in violation of
disability laws?

Factual Background

In Lehenky,  the plaintiff employee was
terminated after testing positive for CBD, specifically for the
“presence of marijuana metabolites (tetrahydrocannabinol,
otherwise known as “THC’).” The plaintiff sued her
former employer for disability discrimination under the Americans
with Disabilities Act (“ADA”) and comparable state law,
claiming that she was disabled and taking the substance to combat
the effects of her disability, Panniculitis, which is an
inflammatory autoimmune connective tissue disease.

As a firm with a robust cannabis practice group, this is a case
we have been waiting on ever since CBD products began flooding the
market a few years ago. Lehenky provides
guidance on a common question our employment law practitioners
receive, “Will CBD show up on a drug screen?” The answer
to that question is yes. Yes, it will likely show up, and, going
one step further, yes, you can likely be terminated for it.

So, let’s dive in! The employee had worked for the employer
for over 18 years when she was told she was being subject to a
random workplace drug test, in line with the company’s Drug
Free Workplace Policy (the “Policy”). The
employee finally showed up for the test, albeit
two days after she was supposed to. The day
after her test, she sent an email to ask the employer what
documentation she needed to provide regarding her use of an
over-the-counter CBD product. The employer did not respond and the
next day, the drug test came back with a positive result, showing
the presence of THC. The employer terminated the employee for
violating its Policy that prohibited employees from using THC.

The employee challenged her termination and provided the
employer with a letter from her physician, dated the
day after the drug test and faxed it to the
employer a full week after the test that simply stated: “[t]he
above named patient was seen in this office on 1-09-19 and will be
able to return to work on 1-9-19. Patient was treated with CBD that
may have a low level of THC.”

The employee sued for disability discrimination under state and
federal law. In her Complaint, she claimed she started taking the
CBD product “after hearing reports of good results about the
effectiveness” and “sought the advice of a licensed
health care physician to investigate whether this might help
control her pain and improve her overall functioning.” The
employer moved to dismiss the case by filing a motion to dismiss
for failure to state a claim upon which relief could be granted
under Fed. R. Civ. P. 12(b)(6).

Testing Positive for CBD Can Be Used as a Legal Basis for
Termination – if the Employer’s Policy Adequately
Supports It

One of the elements the employee had to prove in order to move
forward with her disability claim is that the
employer knew  of the disability at the time of
the adverse action, which, in this case was the termination. The
employer’s Policy regarding drug testing had been in effect
since 2016. The Policy contained a preemptive requirement that
required employees to report if they were taking any prescription
or over-the-counter drugs that could be deemed “illegal”
under the Policy, and provide documentation that identified the
drug and dosage. If an employee failed to do either one of those
things, the Policy was clear that the substance would be deemed
“illegal” for purposes of the Policy, and that an
employee’s “failure to report the use of such drugs to HR
may result in disciplinary action, up to and including
termination.”

As the court noted, the employee “failed to take this
preemptive measure, yet her entire Complaint [was] premised on her
contention that she was taking a drug that was legally prescribed
by a licensed health care professional to treat her
disability.” The court went on and noted that “[s]aid
contention is belied by review of the physician’s note attached
to her Complaint, including the date of said note, the date of
treatment, and the absence of any indication that said treatment
was for her Panniculitis, and/or how long it was to continue and at
what dosage.”

The court further took issue with the fact that the employee (1)
had been notified the day before the drug test that she had been
randomly selected for a drug test, but failed to show up for two
days; (2) failed to notify the employer of her use of an
over-the-counter product that could be deemed “illegal”
until after the test; and (3) offered as her only support, a
doctor’s note that merely indicated she was treated with CBD
over a month before the drug test that made no mention of any
underlying disability the CBD was necessary for, let alone
dosage.

The most prominent language from the decision, which highlights
the importance of employer policy on drug testing issues, is as
follows:

Plaintiff’s attempt to “unring” the bell after
the test had occurred by now claiming the test was unlawful under
the drug-testing provisions of the ADA, is futile. Plaintiff had
been made aware of the Policy long before she began using the CBD
product yet failed to follow the procedures for informing Defendant
of same until after the test had been administered.

As a result, the court concluded that the employee had no
plausible claim that her termination was the result of her
disability or that she was treated in a discriminatory manner
because of a disability. The termination decision was the result of
the employee’s failure to follow Policy.

Employer Testing for THC is Not an Illegal Medical
Inquiry

Another issue worth discussing is the employee’s claim that
she was subject to an illegal medical inquiry in violation of the
disability laws. The employee claimed that the employer’s
demand that she submit for a test for legal prescription drugs was
not job-related or required for business, meaning the drug test
itself constituted an illegal medical inquiry.

The ADA prohibits employers from making “inquiries of an
employee as to whether such employee is an individual with a
disability or as to the nature or severity of the disability,
unless such examination or inquiry is shown to be job-related and
consistent with business necessity.” 42 USCS §
12112(d)(4)(A). With respect to 42 U.S.C. § 12114, “a
qualified individual with a disability shall not include any
employee or applicant who is currently engaging in the illegal use
of drugs, when the covered entity acts on the basis of such
use.” 42 U.S.C. § 12114(a).

Interestingly, the court found that the employee was aware that
the CBD she was treated with could “have a low level of
THC[,]” so her failure to inform her employer constituted an
“illegal use of drugs” under the employer’s
Policy.

The ADA further provides that:

(d)       Drug testing.

(1)       In general. For purposes of
this title, a test to determine the illegal use of drugs shall not
be considered a medical examination.

(2)      
Construction. Nothing in this title shall be construed
to encourage, prohibit, or
authorize the conducting of drug testing for the
illegal use of drugs by job applicants
or employees or making employment decisions based on
such test results.

42 USCS § 12114(d) (emphasis
added).

The court held that the employee’s claim that she was tested
for legal prescription drugs, and that said testing was an
impermissible medical inquiry under the ADA, was without merit.

The court looked at the substances tested for during the drug
test, which included, Amphetamines, Barbiturates, Benzodiazepines,
Cocaine Metabolites, Marijuana Metabolites, Methadone, Opiates,
Phencyclidine, and Propoxyphene. The court found that several of
the substances tested for could be deemed “legal” if
properly prescribed by a licensed medical physician and taken
accordingly (under said physician’s supervision) by the
patient.

Luckily for the employer, their Policy addressed the situation
specifically. The court relied on a sister court decision for the
finding that an employer’s inquiry into the prescription drugs
an employee might be taking for purposes of enforcing a workplace
drug testing policy, is not a
disability–related medical inquiry.

Since the employee had been informed of the Policy to notify her
employer of any prescription drugs far in advance of her failed
drug test, the employee’s claims were dismissed.

Employer Takeaways:   This case
demonstrates how important it is for employers to have
well-structured and defined drug testing policies. With the
allowance of medical and recreational marijuana vastly expanding
across the country, and the use of THC derivatives and
derivate-based products such as CBD, it is increasingly important
for employers to determine what they need their policies to look
like and ensure they address all types of drugs that may impact or
otherwise impair an employee’s performance, including
prescription and over-the-counter medications. This is especially
true for employers involved in workers’ compensation Drug Free
Workplace policies that have stringent requirements regarding what
such policies have to look like.

Employers should also be aware that these laws are
state–specific, so what may be fine for employees in one
state may not fly in another.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.