In our modern world of a booming CBD industry and a growing number of states that have legalized marijuana, can you fire an employee for testing positive for marijuana? What if the test shows marijuana metabolites but you later find out it’s positive for CBD oil (a legal substance)? Does federal law protect an employee in any way in this scenario? In Rocchio vs. E&B Paving, LLCa federal district court in Indiana considered 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 in 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 banned drugs E&B tested for was marijuana.
Employee John Rocchio’s number came out, he took his drug test and the test revealed marijuana metabolites in his system. The third-party testing administrator informed E&B that Rocchio had tested positive for marijuana and E&B terminated his employment. The employee who recommended the termination relied on the report of a positive drug test. A simple example of prohibited conduct and consequences, isn’t it? Not so fast, said Rocchio.
You can’t fire me for using CBD oil!
Rocchio said he had not used marijuana and the positive test was due to the fact that he had used CBD oil (also known as cannabinoid oil), an extract of hemp sold legally. E&B relied on the result of the drug test rather than Rocchio’s plea of innocence and did not return him to work.
Rocchio filed a lawsuit claiming, among other things, that E&B violated the ADA by firing him and not rehiring him. How was he disabled, you ask? He argued that his employer “considered” him to have a disability. The court found that even if Rocchio could prove he was a qualified disabled person, he still could not prove he had been fired because his disability and not the positive doping test.
The ADA does not prohibit legal substance testing
Just because the ADA doesn’t say employers can testing legal substances (like CBD oil), doesn’t mean they can’t. According to the opinion, Rocchio argued:
Because the ADA explicitly permits covered entities to prohibit illegal drug use and test illegal drug use, 42 USC§ 12114(c)-(d), but does not explicitly allow prohibitions on legal medications or tests 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 disagreed. First, the court held that the absence of explicit permission from the ADA for a company to prohibit the use of legal substances does not mean that the ADA prohibits such a prohibition. 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 wasn’t testing CBD oil – it was testing marijuana. The court pointed out that Rocchio presented no evidence that E&B knew the positive test result was due to CBD oil rather than marijuana. The third-party test administrator’s report refers to marijuana metabolites, not CBD oil.
No evidence of a perceived disability
Now let’s move on to the perceived disability claim:
The only evidence of Mr. Rocchio’s discrimination is his argument that the defendants’ policy of firing employees who test positive for drugs categorically “considers” them users of illegal drugs and, because the defendants cite safety concerns as justification for the policy, such as having a disability under the ADA.
Not so fast, the court said. First, just because E&B has a drug testing policy for safety reasons does not automatically believe that every employee who tests positive has a disability under the ADA. Even if E&B thought some employees who test positive will have an impairment, it does not mean that he thinks they are all impaired. Rocchio had to show that E&B thought he had a disability. Second, an employer “does not have to tolerate unacceptable behavior” – such as testing positive for illegal drugs – “even if that behavior is precipitated by an employee’s disability”. Finally, Rocchio had no other evidence of discrimination on the basis of disability. Although two people (including an E&B employee) told him they were sorry to hear about his drug addiction, he had no evidence that these people had based the comments on anything other than “word of mouth”. and speculation.
The court found no violation of the ADA and granted E&B’s motion for summary judgment.
Take away food
This case raises interesting questions for employers. Rocchio says he was engaging in legal, off-duty behavior and it got him fired. This case suggests that if there is any legal protection for him, it is not under the ADA. The facts that the court seemed to find most helpful to 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 indicated that the employee had tested positive for marijuana metabolites. He never received a report of CBD oil or any other legal substance.
The employer systematically fired employees who tested positive.
So what can we learn from this case? Your drug test may show that CBD oil is positive for marijuana. You may want to alert your employees to this potential. If you don’t want to terminate CBD oil users, consider what steps you should take to avoid this scenario, perhaps asking CBD users to disclose before testing (like a prescription drug). Plus, if you live in Indiana, this case comes in handy. However, it may have ended differently in a state that has legalized marijuana and/or has a law protecting lawful driving outside of work hours. Check your local laws to be sure.
© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 96