Years ago, when both state and federal law outlawed the use or possession of marijuana, most employers maintained a zero tolerance policy for employees testing positive for drugs or alcohol. As states like Michigan began to legalize marijuana … first for medical use and then for recreational use … zero tolerance policies became more challenging to administer. Still, the general rule remained that employers could insist on a substance-free workplace. Increased use of CBD for medical treatment, however, has placed zero tolerance on a collision course with the Americans with Disabilities Act (ADA).

CBD itself does not contain tetrahydrocannabinol (THC) – the psychedelic ingredient in marijuana that makes people high. But CBD can be extracted from either hemp, which has no THC, or from marijuana, which obviously does. Depending on the source of the CBD, the person ingesting it may still test positive for THC. Medical professionals increasingly recommend CBD to patients. It can play a role in pain management, and the FDA has approved CBD-based oil to treat epilepsy.

Last spring, a federal judge in Louisiana ruled that an employer may have violated an employee’s rights under the ADA when it fired her for testing positive for THC. The employee explained that her doctor recommended hemp-based CBD oil to help manage the pain associated with her documented history of severe migraines. When she received notice of a pending drug test, she told to her boss that she used CBD oil and, depending on its source, she might test positive for THC. The supervisor said not to worry about it. Nonetheless, when she did in fact test positive, the employer fired her.

In response to the lawsuit, the employer reasoned that it was within its right to terminate the employee for testing positive for THC. After all, the employer had no objective way to confirm whether the THC was from CBD use or from marijuana use. The employee countered with the fact that (i) she provided a sworn statement that she did not use marijuana; and (ii) her doctor confirmed that CBD oil can provide a false positive for THC.

In ruling that the employee stated a claim that should go to trial under the ADA, the judge determined that a jury could properly conclude that the employer failed to provide a reasonable accommodation for the woman’s disability. In other words, the employer’s goal of maintaining a workplace where no one was under the influence of a controlled substance did not automatically allow it to terminate based on a positive THC test. What once was a hard and fast rule must now be examined on a case-by-case basis to ensure compliance with state and federal disability laws.

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