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?
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.
About the Author: Sara H. Jodka (Member, Columbus) is a member of the firm’s labor and employment department and regularly counsels employers and litigates all types of employment-related cases. She is also a dual-certified privacy professional holding both IAPP-US and IAPP-Europe certifications. Sara is the editor of the firm’s All Things HR Blog and the Chair of the Ohio State Bar Association’s Labor and Employment Section Council. She can be reached at 614-744-2943 or SJodka@dickinsonwright.com. Her biography can be viewed here.