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Drug Testing Litigation Update: Compensable Time & CBD Use

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Just as the legislative landscape grows ever more complicated as it relates to marijuana, so does the related litigation. We’ve posted in the past about numerous suits filed against employers following a positive drug test for marijuana. We’ve even seen a case over an employee’s use of CBD oil.

Employers should stay on top of these trends as they continue to evolve. Two recent cases demonstrate the various arguments employees may make along with how courts may choose to treat the issue. It’s important to note that, thus far, there does not appear to be a general standard employed by courts across the country given how varied the state laws are. We strongly encourage employers review these cases with qualified legal counsel.

Is Drug Testing Time Compensable?

The short answer according to the Ninth Circuit Court of Appeals is no. In this class action case, individuals who were hired by the employer filed suit alleging time and travel expenses related to a pre-employment drug test were compensable.

In its ruling, the court found that because the individuals were not yet employees,they were not performing work for the employer when taking the drug test. Further, the employer made clear the job offer was contingent on successful completion of a background check and drug test. Therefore, there was no active employment contract to support claims the individuals were employees at the time of the drug test.

CBD Use –Reasonable Accommodation Needed?

In a novel issue out of the Eastern District of Louisiana, the court denied the employer’s motion for summary judgment following a former employee’s claims that the employer violated the Americans with Disabilities Act (ADA) and the Louisiana Employment Discrimination Law (LEDL).

The issue started when a long-time employee was fired following a positive drug test for marijuana. The employee used “non-psychoactive hemp-based CBD oil” to manage chronic migraines for years. Following a promotion, she was subjected to a drug test in accordance with federal contract requirements related to a system she now had access to in her new role. She provided her doctor’s recommendation for the CBD oil along with a separate letter regarding the use of CBD oil for her disability.

The court determined there were several fact issues that precluded summary judgment, including whether the plaintiff was qualified for the role (i.e., did the role require the system access which triggered the drug test) and whether the termination reason was pretextual (i.e., the firing wasn’t due to a positive drug test but rather an opportunity for the employer to terminate and save on the high healthcare costs related to her disability). Additionally, the court found a fact issue related to the failure to accommodate claims including whether the employer actually considered the plaintiff’s explanation and supporting documentation related to the positive drug test result.

Employers should continue tracking this case for further developments.

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