Excusing False Positive Drug Test Caused by CBD Use May Be a Reasonable Accommodation, Says U.S. District Court in Louisiana

A federal district court in Louisiana, a Huber v. Blue Cross & Blue Shield of Florida, Inc.recently denied an employer’s motion for summary judgment in an Americans with Disabilities Act (ADA) and Louisiana Employment Discrimination Law (LEDL) case, finding, among other things, that accounting and excusing a false positive drug test as a result of extended cannabidiol (CBD). ) use may be a reasonable accommodation.

background

Michelle Huber, an IT business analyst working remotely for Blue Cross and Blue Shield of Florida, Inc. (BCBS), suffered from recurring debilitating migraines for which she received an accommodation beginning in 2006 and took frequent sick leave under the Medical and Family Leave Act. (FMLA) from 2014 to 2016. In 2016, Huber was diagnosed with hemiplegic migraines, which cause one-sided weakness and total impairment for up to three days. In 2017, his doctor recommended “non-psychoactive hemp-based CBD oil” to control migraines. While using CBD oil, Huber’s migraines improved, and so did his work performance. In fact, Huber was promoted, received “five out of five” performance ratings, and reduced her general FMLA leave after starting a CBD regimen.

In 2019, Huber was informed that he would have to take a drug test due to federal contract requirements. Huber reminded her supervisor of her disability, that her medications included CBD oil, and that because of her promotion she was not covered by the federal contract in question. Huber’s supervisor told him to “play along” and take the drug test anyway because the results would have nothing to do with his job. Despite these assurances, the employer terminated Huber’s employment after she failed a drug test for tetrahydrocannabinol (THC), the psychoactive compound in marijuana.

Huber filed suit alleging that BCBS violated the ADA and the LEDL by terminating her employment because of her disability, failing to accommodate her disability, and intentionally interfering with her rights under ADA. BCBS filed a motion for summary judgment, arguing that Huber was not a “qualified person” under the ADA or the LEDL because passing a drug test was a job requirement, and that the stated reasons for his discharge , that he failed the drug test, was not a pretext for illegal discrimination. U.S. District Judge Mary Ann Vial Lemmon denied summary judgment on all claims.

Decision of the District Court

The issue at issue in Huber’s wrongful termination claim was whether she was a qualified individual under the ADA or the LEDL. The court held that whether Huber qualified was a question for the jury because it was not clear that the federal contract applied to her, and even if it did, BCBS had not shown that she was under the influence of a contract illegal and not prescribed. controlled substances while working remotely. Huber submitted an affidavit stating that he had never used marijuana and submitted a letter from his doctor explaining that the CBD oil product he was taking could produce a false positive. BCBS’s Medical Reviewing Officer (MRO) stated that the results “were too high to be a false positive,” but its own senior employee relations consultant stated that the MRO did not appear to have considered whether the others fourteen prescription drugs from Huber in combination with his chronic health. conditions, his body weight, and his prolonged use of CBD oil over several years could have caused him to metabolize the CBD oil at a much slower rate than normal, leading to the positive result. The court went on to explain that BCBS’s reliance on a 15 ng/mL limit for THC was below the low end of Louisiana’s statutory range of 50 to 100 ng/mL for THC concentrations that can negative labor consequences.

The court also found issues of fact as to whether the reason for the discharge, not a drug test, was pretextual. BCBS argued that it had “accommodated [Huber’s] disabled for more than a decade,” that he was granted FMLA leave and allowed to take time off as needed, and that after the same round of testing that resulted in his firing , two other non-disabled employees were fired for positive drug screens, including one who claimed her test result was a false positive caused by CBD oil. Huber argued that BCBS’s true motivation for his termination was discriminatory because, he alleged, the company was trying to avoid future health care costs for his disability, which had already cost more than $700,000.

The court noted that Huber “pointed to evidence that although ․ [BCBS’s] proposed reason [were] true, it could have been an additional motivating factor [her] disability, that has[d] required [BCBS] to absorb large medical costs.”

“This theory,” the court said, “along with the question of whether the drug test was actually necessary for [Huber’s] position, state outstanding factual issues.”

The most interesting issue in the case is the breach claim. BCBS admitted that Huber was a qualified person with a disability and that he was aware of the limitations imposed by the disability. BCBS challenged whether it had not reasonably accommodated its known limitations. Huber claimed that BCBS had not “accommodated him by not allowing him to use medically prescribed non-psychoactive CBD oil to manage his migraines.” BCBS countered this argument by stating that it never restricted Huber from taking CBD and that Huber was asking it to ignore a positive drug test result for THC. Excusing a positive test result is not a reasonable accommodation, BCBS argued, but a form of preferential treatment.

The court found that the accommodation requested by Huber, that she be allowed to use CBD oil to control migraines, necessarily implied that a false positive caused by CBD oil would not be held against her. “Therefore, for the accommodation to be reasonable,” the court wrote, “[the] the defendant must provide some way to justify and excuse a false positive.” The court noted that while BCBS had argued that Huber had had the opportunity to provide additional information about his CBD use, it was not clear for the court that BCBS had actually considered the additional information provided by Huber to explain its positive test result. The court further stated that the employer had not provided a good faith basis for its conclusion that Huber’s result of 90 ng/mL was a definite positive result (not a false positive), although it fell within Louisiana’s legal range of excusable levels when adverse occupational consequences can occur depending on the level of nanograms Accordingly, the court found an issue of fact on the reasonable accommodation claim.

Ultimately, the court allowed Huber’s ADA interference claim to move forward, noting that the United States Court of Appeals for the Fifth Circuit has yet to articulate a specific test to state such a claim. The court explained that by using CBD oil to control his migraines, Huber “participated in the enjoyment of a protected right” and “[a]The implicit corollary of this adaptation is that the employer must account for a false positive test caused by CBD oil.”

key points

First, it’s important to note that this is a case involving the use of CBD oil, not medical marijuana, which has been legal in Louisiana since 2019 and is psychoactive due to increased of the THC content. However, CBD products contain traces of THC (less than 0.3 percent). Because this is a CBD case, and not a marijuana case, the court was not required to reconcile the apparent conflict between the ADA, which does not recognize marijuana as a legal prescription drug because it is a Schedule I controlled substance under the federal anti-drug. laws, and the LEDL, which does not replicate the ADA’s treatment of marijuana.

Second, with the growing popularity of CBD oil to treat a myriad of health issues, including pain, anxiety, and sleep problems, employers may want to be prepared to address potential fake drug screens positives caused by traces of THC in some CBD oils. Employers may also want to consider how to accommodate false positive drug tests caused by the use of CBD oils, as explained by the district court. When evaluating a positive drug test for THC, employers may want to consider all relevant facts, including the employee’s medical history.

Finally, Louisiana employers may want to consider Louisiana’s legal range of 50 ng/mL – 100 ng/mL for THC concentrations before making adverse employment decisions.

Ogletree Deakins will continue to monitor and report on the ever-changing landscape of drug testing in the era of legalized CBD and marijuana, both medical and recreational. Important information for employers is also available through the company’s webinar and podcast programs.

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