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Volume XII, Number 177

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But I Didn’t Inhale! Employee Drug Tests in a CBD World

Given the explosive growth of cannabis products and the increasing number of states that have legalized marijuana for medicinal or adult use (nearly 40 at last count), employers across the country are asking whether they can terminate an employee for a positive drug test for marijuana. What if the test shows marijuana metabolites but you find out later it was a positive for CBD oil (which is, generally speaking, a legal substance)? Does federal law protect an employee in any way in this scenario? In Rocchio v. E&B Paving, LLC, a federal district court in Indiana looked at this issue under the Americans with Disabilities Act and found no federal legal protection for the employee’s use of CBD oil.

Just the Facts

E&B prohibited the use of illegal drugs at their workplace and based the policy on safety concerns. It used a third party to administer random tests. E&B had a zero-tolerance policy and immediately terminated employees who tested positive. One of the prohibited drugs for which E&B tested was marijuana.

Employee John Rocchio’s number came up, he took his drug test, and the test revealed marijuana metabolites in his system. The third-party testing administrator notified E&B that Rocchio tested positive for marijuana, and E&B terminated his employment.A straightforward example of prohibited conduct and consequences, right? Not so fast, said Rocchio.

Rocchio went to his Union, the International Union of Operating Engineers Local 103, to complain. He ultimately submitted a grievance and met with the business manager, John Ballard, and two business agents. Rocchio testified that the Union representatives were dismissive of his grievance. They told him the additional drug tests he took after his termination did not matter (at least in part because those results could have been made up and that without a

negative result from the “split sample” (i.e., the control sample from his drug test), “there wasn’t anything that they could do.” Under the rules, the Union can decide not to pursue a grievance, at which point the employee can appeal the decision to the executive board or file a personal grievance. Rather than appeal or file his own grievance, Rocchio gave up.

You Can’t Fire Me for Using CBD Oil!

Rocchio said he did not use marijuana, and the positive test was because he used CBD oil (also known as cannabinoid oil), a legally sold hemp extract. E&B relied on the drug test result rather than Rocchio’s plea of innocence and did not bring him back to work.

Rocchio filed a lawsuit against E&B and the Union. The first claim was that E&B breached the collective bargaining agreement and against the Union, alleging that it breached its duty of fair representation. The second claim was that E&B violated the ADA by terminating him and not rehiring him.

Rocchio Loses on his Hybrid Section 301 Claim . . .

The district court first looked at Rocchio’s breach of contract and duty of fair representation claim, known as a hybrid Section 301 claim. This kind of hybrid Section 301 claim is tricky for the plaintiff– to succeed against either defendant, a plaintiff must succeed on both claims. In this case, the district court started with whether Rocchio could succeed against the Union and found he could not.

Before Rocchio could bring a hybrid Section 301 claim, he first had to exhaust his internal union remedies. In this case, Rocchio did not bring a grievance. When the Union representatives were dismissive of his claims, Rocchio could have pursued either an appeal to the executive committee or filed a personal grievance. He did neither.  The district court found that Rocchio’s lack of persistence was fatal to his claims against the Union and thus, fatal to his hybrid Section 301 claim.

. . . and His ADA Claim

In looking at the ADA claim, the court began with the undisputed facts: Rocchio tested positive for marijuana and E&B terminated him because of the positive test. The court held that “no reasonable jury could find that he was terminated because of a perceived impairment and not because of the positive drug test.”

Just because the ADA does not say employers can test for legal substances (like CBD oil), does not mean they can’t. According to the opinion, Rocchio argued:

Because the ADA explicitly permits covered entities to prohibit the use of illegal drugs and to test for the use of illegal drugs, 42 U.S.C.§ 12114(c)-(d), but does not explicitly permit bans of legal drugs or testing for legal drugs, it follows that “it violates the ADA” if an entity takes adverse action against an employee who tests positive from the use of CBD oil, a legal substance.

Clever, but the court did not agree. As an initial matter, the court held the ADA’s lack of explicit permission for a company to ban the use of legal substances does not mean the ADA prohibits such a ban. As we all know, a company can terminate an employee for any reason, fair or unfair, as long as it is not illegal. Also, E&B was not testing for CBD oil — it was testing for marijuana. The court pointed out that Rocchio presented no evidence that when it terminated Rocchio E&B knew the positive test result was because of CBD oil rather than marijuana. The report from the third-party testing administrator reported marijuana metabolites — not CBD oil.

And No Evidence of a Perceived Disability

Rocchio argued that E&B “regarded” him as having a disability. Under the ADA, an individual does not have to actually be disabled to pursue a claim. Instead, a plaintiff can attempt to prove that they were “regarded as” having a disability—that the employer discriminated against him “because of an actual or perceived physical or mental impairment.”

What was his evidence that he was “regarded as” disabled?

Mr. Rocchio’s only evidence of discrimination is his argument that Defendants’ policy of terminating employees who test positive for drugs “categorically” “regards” them as users of illegal drugs and, because Defendants cite safety concerns as the rationale behind the policy, as having an impairment under the ADA.

Not so fast, said the court. First, just because E&B has a drug testing policy for safety reasons does not mean that it automatically believes every employee who tests positive has an impairment under the ADA. Even if E&B thought some employees who test positive will have an impairment, that does not mean it thinks all of them are impaired. Rocchio had to show that E&B thought he had an impairment. Second, an employer “does not have to tolerate unacceptable behavior” — such as a positive test for illegal drugs — “even if that behavior is precipitated by an employee’s disability.” Finally, Rocchio had no other evidence of disability discrimination. Although two people (one an E&B employee) told him they were sorry to hear about his drug addiction, he had no evidence that those folks based the comments on anything other than “word of mouth” and speculation.

The court found no ADA violation and granted E&B’s motion for summary judgment.

Takeaways

This case raises interesting issues for employers, employees, and CBD product manufacturers. Rocchio says he was engaging in legal, off-duty behavior and it got him fired. According to this court, if there is legal protection for him, it is not under the ADA. The facts that the court seemed to find most helpful for the employer were:

  • The employer did not target the employee for testing — it was random and a third-party administrator handled it.

  • The report to the employer was that the employee tested positive for marijuana metabolites. It never got a report about CBD oil or another legal substance.

  • The employer consistently terminated employees who tested positive.

So what can we learn from this case?

First, employers can continue to test for illegal drugs and terminate employees who test positive for them. The ADA explicitly allows for drug testing. As always, it is best to have a third party do the testing and have that third party field the various explanations for the positive tests. This will keep you from asking questions about potential disabilities. In this case, it also kept the employer from having to make a decision about whether the employee’s use of CBD oil gave a false positive for marijuana.

Second, make decisions on the facts you have and not speculation about whether an employee may or may not be disabled. In this case, the plaintiff had no evidence that his employer thought he or anyone else who tested positive was disabled. Make sure your supervisors and HR folks are not suggesting otherwise.

Third, a drug test may report CBD oil as positive for marijuana. Employers may want to warn employees about that potential. If an employer does not want to terminate CBD oil users, it should think about steps to take to avoid this scenario, perhaps by having CBD users disclose the use before testing (like a prescription drug). Some employers treat medical marijuana like any other prescription drug, so treating CBD oil similarly would make some sense. For their part, employees may want to consider proactively disclosing their use of CBD products so that it seems more like an explanation than an excuse if they find themselves in the shoes of Rocchio.

Prudent manufacturers and sellers of products containing CBD will take notice of this case and others like it. It has become fashionable for CBD suppliers to make claims about the contents of the products and the ability to pass a marijuana drug test even when using the product. Any person making such a claim better be sure it is correct, as employees may well look to them if they are subject to discipline notwithstanding such claims.  

One day, hopefully soon, there will be widespread access to nuanced cannabis testing that eliminates the scenario faced in the Rocchio case and in cases around the country. Or perhaps cannabis laws will continue to evolve such that the issue is largely moot. Until that time, however, all involved must proceed with caution. Given the stakes, there is no substitute for digging in and learning the rules of the road.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 98
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About this Author

Whitt Steineker Cannabis Attorney Bradley Birmingham
Partner

Whitt Steineker has devoted his legal career to representing companies that provide a wide range of goods and services. He provides clients of all types with litigation counsel, transactional advice, and practical strategies for growth. Whitt advises clients of all sizes—from multinational corporations to local businesses—in transactional and litigation matters in jurisdictions across the country and around the world.

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients on a wide range of cannabis issues. In addition to...

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Anne R. Yuengert Employment Attorney Bradley Birmingham
Partner

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

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J. William Manuel Litigation Attorney Bradley Jackson, MI
Partner

Will Manuel focuses his practice primarily on commercial and employment litigation. He has handled various disputes for both large and small businesses in both Mississippi and other jurisdictions.

Will's clients include numerous manufacturers and commercial interests as well as various insurance and financial services companies. He has worked to defend these clients in both MDL litigation and individual actions brought in Mississippi. Will also has experience in advising businesses on issues involving age discrimination, sexual harassment and...

601-592-9915
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