The employee claimed that in 2018, she was diagnosed with autoimmune connective tissue inflammation. I started using a CBD product after hearing about its effectiveness. She never reported her medical condition, or CBD product use, to her employer. The employer’s drug and alcohol policy requires employees to report the use of drugs that could be considered “illegal” prior to drug testing. In January 2019, an employee was selected for a random drug test under an employer’s drug testing policy that has been in place since at least 2016. It was treated with CBD which “may contain a low level of THC.” THC is the psychoactive substance in marijuana that can cause a positive drug test result.
The employee tested positive for marijuana and was terminated as per the employer’s policy. The employee confirmed allegations of disability discrimination under the Americans with Disabilities Act and the Pennsylvania Human Relations Act.
The court rejected the employee’s claims for a number of reasons including that the employer did not know that the employee was disabled, that the employee was not qualified to hold office because of illegal drug use, and there were no facts to show that the employer “considered” the employee as an illegal drug user . The court also held that the drug testing policy does not impose a differentiated effect on eligible persons with disabilities. Finally, the court held that drug testing for illicit drug use did not constitute an impermissible medical investigation.
This case highlights the fact that use of CBD products can lead to positive drug test results for marijuana. While CBD products are marketed and sold everywhere, they have not been regulated by the US Food and Drug Administration. These products may claim that they do not have THC or low levels of THC in them, which may or may not be true. Even at low levels, prolonged use of these products can result in positive marijuana test results.
Some states have laws that allow the medical use of CBD products for certain medical conditions. Employers should consult with an attorney to ensure that their drug and alcohol policies address the use of CBD products appropriately under applicable laws.