A Pennsylvania court affirmed an order of the Unemployment Compensation Board of Review holding a claimant to be eligible for unemployment benefits after her employer terminated her employment for testing positive for marijuana. Washington Health System v. Unemployment Compensation Board of Review, No. 886 C.D. 2019 (May 11, 2020).

The Claimant was employed as a licensed Occupational Therapist and was subject to random testing under her employer’s drug and alcohol testing policy. On March 26, 2018, she was required to undergo a random drug test, which was positive for marijuana (according to her employer). Prior to the test, Claimant disclosed that she used cannabidiol (CBD) that she purchased over-the-counter to manage her cancer-related symptoms. The employer notified Claimant that she tested positive for marijuana and terminated her employment.

The employer did not submit the drug test result into evidence during the unemployment proceeding; however, Claimant testified that she was told that she tested positive for marijuana. Claimant denied using marijuana, but admitted that she used CBD and asserted that the use of CBD is “legal.” Claimant further testified that a doctor told her that CBD could cause a “false positive” test result for marijuana.

The Board of Review held that it was the employer’s burden to prove that the Claimant violated the drug and alcohol testing policy. It stated that the use of CBD oil with a THC concentration of .3% or less would be legal. Given that there was no evidence of the drug test result or the THC concentration in Claimant’s test result, the Board found that she was eligible for unemployment benefits.

The Court affirmed for the same reasons. Although the employer tried to argue that Claimant “admitted” she tested positive, she merely testified that she was told she tested positive. The drug test result was not entered into evidence. Moreover, the Claimant denied any illegal drug use. Therefore the employer failed to carry its burden of proof.

In addition, the Court stated that the employer failed to show that the ingestion of CBD oil would have affected the Claimant’s ability to perform her job safely, and failed to prove that CBD is a prohibited controlled substance.

A dissenting opinion noted, among other things, that the Court’s conclusions about the “legal” sale of CBD oil and its statements about the percentage of THC were irrelevant. The employer’s policy prohibited coming to work under the influence of drugs, and further defined that term as any amount of a drug that triggers a positive test result. Moreover, the dissent stated that Claimant’s subjective belief that CBD oil is “legal” was also irrelevant.

This case highlights the fact that there are conflicting opinions about whether CBD is a legal substance. Moreover, the widespread availability of CBD products leads many people to assume that these products are legal, when they have not yet been approved by the FDA and the amount of THC that they may contain is uncertain.  Employers should review the applicable laws in the states where they do business and should review their drug and alcohol testing policies to address CBD use by employees.