In our modern world of a booming CBD industry and an increasing number of states that have legalized marijuana, can you terminate an employee for a Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case — April 28, 2022 While legal in all 50 states since the Farm Bill of 2018 the answer to will CBD get me fired, is yes it could. Here’s how to make an informed decision.
Don’t Fire Me! I’m Drug Free! It Was CBD! Indiana Court Examines Termination for Use of Hemp Oil
In our modern world of a booming CBD industry and an increasing number of states that have legalized marijuana, can you 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 (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. The employee who recommended the termination relied on the report of a positive drug test. A straightforward example of prohibited conduct and consequences, right? Not so fast, said Rocchio.
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 claiming, among other things, that E&B violated the ADA by terminating him and not rehiring him. How was he disabled you ask? He argued that his employer “regarded” him as having a disability. The court found that even if Rocchio could prove that he was a qualified individual with a disability, he still could not prove he was terminated because of his disability and not the positive drug test.
ADA Doesn’t Prohibit Testing for Legal Substances
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 an 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 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.
No Evidence of a Perceived Disability
Now let’s get to the perceived disability claim:
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” — like 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.
This case raises interesting issues for employers. Rocchio says he was engaging in legal, off-duty behavior and it got him fired. This case suggests that 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? Your drug test may report CBD oil as positive for marijuana. You may want to warn your employees about that potential. If you do not want to terminate CBD oil users, think about what steps you should take to avoid this scenario, perhaps by having CBD users disclose it before testing (like a prescription drug). Also, if you live in Indiana, this case is helpful. However, this may have ended differently in a state that has legalized marijuana and/or has a law protecting legal, off-duty conduct. Check your local laws to be sure.
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…
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, administrative law judges and federal and state court judges. She has tried more than 30 cases to verdict.
Will Manuel focuses his practice primarily on commercial and employment litigation. Will advises businesses on issues involving age discrimination, sexual harassment and wage/overtime disputes for both large and small businesses in across Mississippi and other jurisdictions. His clients include numerous manufacturers and commercial…
Will Manuel focuses his practice primarily on commercial and employment litigation. Will advises businesses on issues involving age discrimination, sexual harassment and wage/overtime disputes for both large and small businesses in across Mississippi and other jurisdictions. His 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’s focus is on active litigation from the initial discovery process through trial. View articles by Will.
As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to…
As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to commercial real estate companies to insurance companies and high net worth individuals – on best practices for interacting with cannabis companies.
Whitt is one of the leading voices in the cannabis bar – recognized as a “Go-To Thought Leader” by the National Law Review. He has presented on cannabis issues at conferences around the country. His work has been featured in the National Law Journal, Law360, and the Westlaw Journal. And he has been quoted in an array of legal and mainstream publications from Law360 and Super Lawyers to the Atlanta Journal-Constitution and the Associated Press.
Can an employee legally be fired for using over-the-counter CBD products?
Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case dismissed.
So, let’s talk about how and why.
According to the plaintiff’s complaint, she had a disability for which she used an over-the-counter CBD product. It appears that her doctor suggested that she use the CBD product. (It’s not clear whether the doctor prescribed CBD.)
Problems arose when the defendant randomly selected the plaintiff for a random drug test. The plaintiff took the test, at which time she learned that the over-the-counter CBD would cause a positive result. After taking the test that day, the plaintiff emailed the defendant to determine what “documentation” she needed to provide regarding her CBD use. The defendant did not respond.
Sure enough, the plaintiff’s drug test came back positive for THC the next day, and the defendant fired her immediately for illegal drug use. The plaintiff then sued for disability discrimination under the Americans with Disabilities Act.
Now, here’s the thing with the ADA. It does not protect employees from the illegal use of drugs. (CBD products may contain THC).
The ADA does protect CBD users from discrimination based on any underlying disability. But here’s the rub. Suppose the employer doesn’t know any underlying disability. Then, a firing after a positive drug test can’t result in a viable ADA claim.
In this case, the defendant did not know that the plaintiff had a disability — at least not until after the defendant got the test results. Maybe, it never knew.
Plus, the defendant had a good drug test policy. The policy stated that any employee taking prescription or over-the-counter drugs that could be considered “illegal” must provide advance documentation identifying the medication and dosage. Otherwise, the company would deem the drug “illegal,” and “failure to report the use of such drugs to HR may result in disciplinary action, up to and including termination.”
The plaintiff claimed to have used CBD for a while before her random drug screen. But she did not inform the defendant before her drug test. Instead, she provided a doctor’s note post-test. Had the plaintiff followed the policy, the defendant might have given her a pass on the negative results. Instead, when the plaintiff tested positive for illegal drugs (THC), the defendant had no reason to believe she used legally prescribed drugs.
Of course, your mileage may vary depending on the state/city in which you operate and the unique facts and circumstances surrounding a positive drug test involving CBD. But, in many instances, you can fire someone simply because they test positive for marijuana.
(That said, unless you operate in an industry that requires drug testing, why bother? But that’s a post for another day.)
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You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, as a Partner of a national law firm, FisherBroyles, LLP, I’m here to help. I’m not only an EEOC-approved trainer, I offer day-to-day employment counseling, workplace audits and investigations, and other prophylactic measures to keep your workplace working while you focus on running your business. And for those employers in the midst of conflict, I bring all of my know-how to bear as your zealous advocate. I’m a trial-tested, experienced litigator that has represented companies of all sizes in a veritable alphabet soup of employment law claims, such as the ADA, ADEA, CEPA, FMLA, FLSA, NJLAD, PHRA, Title VII, and USERRA. I also help clients litigate disputes involving restrictive covenants such as non-competition and non-solicitation agreements, as well as conflicts over use of trade secrets and other confidential information. For more about me, my practice, and my firm, click on my full bio.
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Will CBD Get Me Fired?
Hemp-derived CBD has been legal in all 50 states since the Farm Bill of 2018, but there is much grey area. The quick answer to “Will CBD get me fired is?”, yes—depending on your industry, company policy, or school’s drug policy. Depending on the policy, you may be fired, suspended, or kicked off of sports teams for using hemp-derived CBD.
What Is CBD?
CBD is short for cannabidiol, an active compound found in all of the 700+ strains of the cannabis Sativa plant. CBD is the compound responsible for the medicinal benefits of marijuana. THC is short for tetrahydrocannabinol which is the intoxicating compound that gets you high. However, there is no need for THC to enjoy the benefits of CBD. This is why industrial hemp plants were approved to farm as a part of the 2014 Farm Bill pilot program, then nationwide as of the Farm bill of 2018.
From a legal standpoint in the United States, hemp-derived CBD is any product that is farmed and processed to contain .3 percent or less of the intoxicating compound THC. Marijuana also contains CBD, but if a product contains more than .3 percent of THC it is considered marijuana-derived CBD. The legality of marijuana for recreational or medicinal use varies greatly from one state to the next.
Do Employers Care About CBD?
The majority of employers don’t have official CBD policies. If your company, school, or extracurricular activity has a formal drug policy you must confirm whether or not CBD is allowed. Why? Because on the federal level, CBD is not yet differentiated from marijuana—which remains classified as a Schedule I Drug. This means your employer can prohibit the use of CBD. They can also prohibit the use of medicinal and recreational marijuana, even if it’s legal in your state. If you aren’t sure, ask your HR department—or you will not be able to answer the question of “Will CBD get me fired” with accuracy.
Can You Take CBD While Working?
If your employer allows CBD use, they may prohibit taking it at work or bringing it to work. Again, be sure to clarify the exact policies, as you may be able to keep CBD in your vehicle in the parking lot but cannot bring it inside. This can be confusing, as you are likely allowed to bring other prescriptions and supplements with you to work, but CBD and marijuana may not be allowed on site.
Even if legal in your state, because marijuana makes you high, most employers prohibit use at work or arriving to work under the influence.
Can An Employer Fire You For Using CBD Oil?
The short answer is—yes. If your employer prohibits use and you are caught using CBD onsite, you can be fired. You can also be fired if they allow use, but you aren’t allowed to bring it onsite, and are found with CBD products. Or you can be fired if you aren’t allowed to use CBD at all and are caught using it offsite.
Wondering how your employer would know you are using CBD oil offsite? A failed drug test is the most common way an employer would find out. Let’s take a closer look at drug tests and CBD.
Will CBD Show On Drug Test?
Although rare, it’s not unheard of for CBD products to test positive for THC, so if your employer performs drug tests—it may be better to remain safe than sorry. Let’s take a closer look at drug tests.
Drug tests screen for a variety of drugs, including THC. Currently, there is no way to distinguish between CBD and THC. As stated above, CBD products can contain up to .3 percent of THC. However, the industry is highly unregulated, and some brands have been found to contain much higher levels of THC. On the flip side, brands such as Holmes Organics process their CBD to contain 0.0 percent of THC.
Drug test laws vary from one state to the next, but most employers can perform drug tests. This could be part of their company-wide drug test policy, but in many states, employers can require a drug test when an accident or injury occurs or require a drug test at random even without a designated drug policy.
There are a variety of drug tests, either 5-Panel or 10-Panel, and a variety of different testing methods.
5-Panel Rapid Tests screen for the five drug classes tested on most standard panels. These include:
- Marijuana (THC)
- Phencyclidine (PCP)
10-Panel Rapid Tests are expanded to include up to 10 drug classes. They also come in 6, 7, 8, and 9-panel options. They test for more illicit drug classes, including:
- Marijuana (THC)
- Phencyclidine (PCP
The different types of samples collected for testing include urine, blood, hair strand, and saliva, with urine samples being the most common for schools and employers. There are also a variety of methods for testing each type of sample.
How Long Does CBD Stay In Your System?
This answer varies depending on a variety of factors. On average, CBD is detectable for 2 to 5 days but the factors below could stretch this to a couple of weeks.
- How often you take CBD
- How many milligrams you take
- Your gender, weight, and metabolism
- Administration method—oral or topical
How Much THC To Fail A Drug Test?
Most employers follow the guidelines set forth by the Substance Abuse and Mental Health Services (SAMHSA). Their suggested cut-off level to pass a drug test is if THC levels are at 50 nanograms per milliliter (ng/ml) of urine. However, some tests detect 18, 25, or 150 ng/ml.
Wondering how many nanograms per milliliter will be in your urine if you use CBD? Again, everyone processes CBD differently so there is no way to be certain. However, the more CBD you use the higher the concentration is likely to be in your urine.
Can Truck Drivers Smoke CBD?
Sitting between 10 and 14 hours a day, 7 and 8 days in a row can be taxing on your body. Sure, you can move and stretch a bit when you stop to eat, rest, and weigh in—but these quick breaks aren’t enough to alleviate the pressure of sitting for such long stretches of time. This often leads to physical pain and strain, which may have you considering vaping CBD or taking CBD oil while on the road.
While marijuana is prohibited even if legal in the driver’s state, here’s what the DOT has to say about CBD:
“Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”
Can Healthcare Workers Use CBD?
Both traditional and alternative healthcare workers are prescribing medical marijuana and CBD to their patients at an increased rate. But the question remains, “Will CBD get me fired as a healthcare worker?”
This depends on the individual employer’s drug policies for both marijuana and CBD. Some do not differentiate between the two products, while some do. Even in states where recreational marijuana is legal or a healthcare worker has a medical marijuana card, there may be restrictions.
For example, in California and Colorado, nurses may use marijuana only if:
- The nurse is not impaired when treating patients
- They follow their employer drug policies
- They do not work for the federal government
- They do not violate DUI or other drug criminal laws
The laws and company policies vary greatly from one state and healthcare employer to the next, so you must ensure what your company’s policy is—which you can verify with your HR department.
Can I Take CBD At School?
Many K thru 12 schools, universities, and dormitories prohibit bringing CBD or marijuana on campus. There may be exceptions for students with epilepsy and a prescription or medical marijuana card from a physician.
While you may not be able to bring CBD on campus, students are typically only drug tested if they have signed a sports or extracurricular contract. However, there are exceptions. Staff may be subject to random drug tests. Again, drug tests screen for THC not CBD, but CBD products can contain up to .3 percent of THC, so it is possible to test positive. It’s unlikely, but it has occurred.
Can Federal Employees Take CBD?
Until removed from the list of Schedule I Drugs, or differentiated from marijuana, the answer remains no. This includes all federal, state, and government employees. Active-duty military members also cannot use CBD. There are no exceptions to this rule, and immediate suspension, termination, or discharge are typically the consequence of a failed drug test or being caught with CBD products. This includes products that are medically prescribed.
For example, if a physician approves medical marijuana to alleviate the side effects of chemotherapy—use is still prohibited.
The only exception to this rule is for employees with rare or severe epilepsy, who have a prescription for Epidiolex, the only FDA-approved drug that contains CBD.
Will Topical CBD Get Me Fired?
Generally speaking, topical products with .3 percent of THC or less, absorb less THC into your urine and bloodstream. However, the general answer remains the same—there is no way to guarantee that the THC in CBD won’t show up on a drug test.
With an increasing amount of skincare and beauty products being formulated with CBD, you must be mindful of whether you have CBD topicals in your purse, backpack, or bag when you head to work or school. It may be an anti-aging face cream, hair product, or lotion but if CBD is prohibited there may be consequences for bringing it with you.
How Do I Find CBD With Zero THC?
While industrial hemp is a low-THC strain of the cannabis Sativa plant, sometimes the crops have a bit more than .3 percent THC. Maybe not enough to get you high, but more than the legally permitted .3 percent. So, the additional THC must be removed during the purification process. Unfortunately, not all brands invest in third-party lab testing to ensure purity and THC levels.
The CBD industry is young and highly unregulated, so reading a product label is not enough to ensure that a product contains zero THC. Instead, you must identify a CBD brand that is fully transparent and provides lab reports that ensure purity and THC content. Holmes Organics is such a brand.
Holmes Organics products are USDA Certified Organic, US-grown, and we invest in third-party lab testing to ensure purity and 0.0 percent THC. Our products are also broad-spectrum so they include the terpenes required to prompt the Entourage Effect. However, we still cannot guarantee that you won’t fail a drug test.
How Much CBD Should I Take?
Please Note—CBD companies cannot provide medical advice and we cannot guarantee that CBD will effectively soothe your mind or body. The data we provide is for informational purposes. Consult with your physician for guidance on all dietary supplements.
If you have answered the question of “Will CBD get me fired?” and have decided that CBD is right for you—you may be wondering how many milligrams to take per serving and how often to take CBD. Consult with your physician, to determine a starting point for your height, weight, and wellness needs. That being said, most people start with between 10 and 30 milligrams per serving at least once per day.
We Invite You To Browse Holmes Organics CBD
If you are searching for a premium CBD brand that performs third-party lab testing to ensure purity and 0.0 THC—we invite you to browse the products at Holmes Organics. We have a wide range of products including oil tincture, softgels, gummies, and a topical cream. We also have a melatonin and CBD sleep product coming in the First quarter of 2022!