A federal court in Pennsylvania dismissed the legal claims asserted by a former employee who tested positive for marijuana on a random drug test and who attributed the test result to CBD use.  Lehenky v. Toshiba America Energy Systems Corporation, No. 20-cv-4573 (E.D. PA. February 22, 2022).

The employee alleged that in 2018, she was diagnosed with an inflammatory autoimmune connective tissue disease.  She began using a CBD product after hearing about its effectiveness. She never reported her medical condition, or the use of the CBD product, to her employer.  The employer’s drug and alcohol policy required employees to report the use of medications that could be deemed “illegal” prior to being drug tested.  In January 2019, the employee was selected for a random drug test under the employer’s drug testing policy that had been in effect since at least 2016. One day after taking the drug test, the employee provided a letter from her doctor that stated only that she was treated with CBD which “may have a low level of THC.”  THC is the psychoactive substance in marijuana which can cause a positive drug test result.

The employee tested positive for marijuana and her employment was terminated pursuant to the employer’s policy.  The employee asserted claims of disability discrimination under the Americans with Disabilities Act and the Pennsylvania Human Relations Act.

The court dismissed the employee’s claims for a number of reasons including that the employer did not know the employee was disabled, the employee was not qualified for her position due to the illegal drug use, and there were no facts showing that the employer “regarded” the employee as an illegal drug user.  The court also held that the drug testing policy did not impose a disparate impact on qualified persons with disabilities.  Finally, the court held that a drug test to detect the illegal use of drugs did not constitute an impermissible medical inquiry.

This case highlights the fact that the use of CBD products can cause positive drug test results for marijuana.  While CBD products are marketed and sold everywhere, they are not yet regulated by the U.S. Food and Drug Administration.  These products may claim to have no THC in them or low levels of THC in them, which may or may not be true.  Even at low levels, prolonged use of these products can cause positive marijuana test results.

Some states have laws permitting the medical use of CBD products for certain medical conditions.  Employers should consult with counsel to ensure their drug and alcohol policies address the use of CBD products appropriately under applicable laws.