Louisiana Expands Medical Marijuana Access

Tag: CBD

Tag: CBD

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

Posted on by justin

A federal district court in Louisiana, in 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 for and excusing a false positive drug test resulting from extended cannabidiol (CBD) use may be a reasonable accommodation.

Background

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

In 2019, Huber was informed that she would be required 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 due to her promotion she was not covered by the federal contract at issue. Huber’s supervisor instructed her to “play along” and take the drug test anyway because the results would not have any bearing on her job. Despite these assurances, the employer terminated Huber’s employment after she failed the drug test for tetrahydrocannabinol (THC)—the psychoactive compound in marijuana.

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

The District Court’s Decision

At issue in Huber’s wrongful termination claim was whether she was a qualified individual under the ADA or LEDL. The court found that whether Huber was 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 failed to show that she was under the influence of illegal, non-prescribed controlled substances while working remotely. Huber submitted an affidavit averring that she had never used marijuana, and she submitted a letter from her doctor explaining that the CBD oil product she was taking could produce a false positive. BCBS’s medical review officer (MRO) testified the results “were too high to be a false positive,” but its own senior employee relations consultant testified that the MRO did not appear to have considered whether Huber’s fourteen other prescription medications in combination with her chronic health conditions, her body weight, and her extended use of CBD oil over several years could have caused her to metabolize CBD oil at a much slower rate than normal, resulting in the positive result. The court went on to explain that BCBS’s reliance on a 15 ng/mL cutoff for THC was below the low end of Louisiana’s statutory range of 50 – 100 ng/mL for THC concentrations that can have negative employment consequences.

The court also found fact issues regarding whether the reason for discharge—failing a drug test—was pretextual. BCBS argued that it had “accommodated [Huber’s] disability for over a decade,” that she had been granted leave under the FMLA and was able to take time off as needed, and that following the same round of testing that resulted in her discharge, two other non-disabled employees were terminated for positive drug screens, including one who claimed that his test result was a false positive caused by CBD oil. Huber argued that BCBS’s true motivation for her discharge was discriminatory because, she alleged, the company was trying to avoid future healthcare costs for her disability, which had already cost more than $700,000.

The court noted that Huber “pointed to evidence that even if [BCBS’s] proffered reason [were] true, an additional motivating factor could have been [her] disability, which ha[d] required [BCBS] to absorb extensive medical costs.”

“This theory,” the court stated, “together with the issue whether the drug test was actually required for [Huber’s] position, indicate outstanding issues of fact.”

The most interesting issue in the case is the failure-to-accommodate claim. BCBS conceded that Huber was a qualified individual with a disability and that it was aware of the limitations imposed by the disability. BCBS challenged whether it had failed to reasonably accommodate her known limitations. Huber asserted that BCBS had “failed to accommodate her by not allowing her to use medically prescribed, non-pyschoactive CBD oil to manage her migraines.” BCBS countered that argument by asserting 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 sought by Huber—that she be allowed to use CBD oil to control her migraines—necessarily implied that a false positive caused by the CBD oil would not be held against her. “Thus, for the accommodation to be reasonable,” the court wrote, “[the] defendant must provide some way to account for and excuse a false positive.” The court noted that while BCBS had argued that Huber had been given an opportunity to provide additional information about her CBD use, it was not clear to the court that BCBS had actually considered the additional information provided by Huber to explain her positive test result. The court further stated that the employer had failed to provide a good-faith basis for its conclusion that Huber’s 90ng/mL result was a definitive positive result (not a false positive) though it fell within Louisiana’s statutory range of excusable levels when negative employment consequences might occur based on nanogram level. Accordingly, the court found a fact issue on the reasonable accommodation claim.

Lastly, the court allowed Huber’s ADA interference claim to advance, noting that the U.S. Court of Appeals for the Fifth Circuit has not yet articulated a specific test to state such a claim. The court explained that by using CBD oil to control her migraines, Huber “engaged in the enjoyment of a protected right” and “[a]n implied corollary of that accommodation is that the employer must make allowances for a false positive test caused by the CBD oil.”

Key Takeaways

First, it is important to keep in mind that this is a case involving the use of CBD oil—not medical marijuana, which has been permitted in Louisiana since 2019 and which is psychoactive because of the increased THC content. Nevertheless, CBD products contain trace amounts 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 lawful prescription drug because it is a Schedule I controlled substance under 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 issues, employers may want to be prepared to address possible false-positive drug screens caused by trace amounts of THC in some CBD oils. Employers also may 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, employers in Louisiana may want to consider Louisiana’s statutory range of 50 ng/mL – 100 ng/mL for THC concentrations before making negative employment decisions.

Ogletree Deakins will continue to monitor and report on developments with respect to 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 via the firm’s webinar and podcast programs.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Department of Transportation Issues Notice on Use of CBD Products by Safety-Sensitive Employees

Posted on by ptcok

The Department of Transportation’s (DOT) recent notice on the use of cannabidiol (CBD) products serves as a warning to employees in DOT-defined safety-sensitive positions. While the DOT has always had clear regulations strictly prohibiting the use of marijuana for truck drivers, school bus drivers, train engineers, pilots, transit vehicle operators, and the like, the increasingly widespread use of CBD products created a gray area with regard to testing. This notice makes clear that CBD use does not excuse a positive drug screen and therefore safety-sensitive employees may want to be wary of using CBD products.

DOT’s Notice on CBD Products

On February 18, 2020, the DOT issued its “DOT Office of Drug and Alcohol Policy and Compliance Notice,” on the use of CBD products by safety-sensitive employees who are subject to the DOT’s drug-testing regulations. These products include the increasingly popular CBD alternatives available on the market today. In 2018, President Donald Trump signed the Agriculture Improvement Act of 2018 (Farm Bill) (Pub. L. No. 115-334), which legalized industrial hemp at the federal level. The DOT’s notice observes that “hemp” has been removed from the definition of marijuana under the Controlled Substances Act. Therefore, hemp-derived products containing up to 0.3 percent of tetrahydrocannabinol (THC), the psychoactive component of the cannabis plant, are not controlled substances.

With that as background, the DOT notice emphasizes the following three points for both employers and safety-sensitive employees with regard to the use of CBD products:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

Though not law, this notice may give employers needed and appreciated guidance on the use of CBD products and how the DOT will enforce their use by employees in safety-sensitive positions. The DOT will not test for CBD, but the notice warns safety-sensitive employees against the use of highly-unregulated products containing the substance.

Key Takeaways for Employers

The increasing popularity of CBD products has sparked inquiries in almost all industries, but especially by those DOT-regulated employers that employ safety-sensitive employees. This notice may give those employers some clarity on safety-sensitive employee use of CBD products.

Importantly, CBD products are not illegal, and neither is their use. CBD products are those products that contain less than 0.3 percent of THC, and therefore do not fall within the legal definition of marijuana under the Controlled Substances Act. Products with less than 0.3 percent of THC should not trigger a positive drug screen, and the DOT does not test for CBD oil.

However, CBD use is not an excuse for a positive drug screen. As the notice explains, CBD products are highly unregulated and may contain more than 0.3 percent of THC, even if their labels indicate the contrary. This means that the use of CBD products could trigger a positive drug test for THC, and any such test result will be treated as would any other result that is positive for THC. Employers may want to make their employees aware of the notice, as employees may not seek out the notice of their own accord.

The legalization and use of recreational and medical marijuana, and cannabis products, such as CBD, continue to present unique issues for employers. Ogletree Deakins will continue to monitor state legislation and will post updates on the firm’s Drug Testing blog as additional guidance becomes available.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

What Is CBD Oil and Why Should Employers Care to Know?

Posted on by ptcok

Cannabidiol (CBD) is a nonintoxicating compound found in both marijuana and hemp that can be extracted and combined with oil for ingestion or inhalation through the use of a vaporizer. In recent months, retailers in many states have been marketing and selling CBD oil derived from hemp as a natural remedy for pain, anxiety, insomnia, and a multitude of other ailments. And business has been booming—sales of hemp-derived CBD products totaled approximately $600 million in 2018, and that number is expected to grow rapidly over the next several years. Due to the red tape created by the Controlled Substances Act, CBD has not been thoroughly studied, and additional research will be needed to fully understand CBD’s standalone effects and health ramifications. However, the World Health Organization and the U.S. Food and Drug Administration (FDA) have found that CBD is effective in treating certain forms of epileptic seizures.

Recent federal legislation removed hemp and hemp-derived products, including hemp-derived CBD, from Schedule I of the Controlled Substances Act, which drastically increased their marketability. Since the use and production of CBD oil and related products derived from hemp are now lawful under federal law and in most states, employers may want to learn the basics about CBD and what it means for their workforces.

How Is CBD Related to Cannabis, Marijuana, or THC?

“Cannabis” refers to the species of plant from which the drug marijuana is derived. Cannabis contains a psychoactive ingredient called tetrahydrocannabinol (THC), which produces a “high” in marijuana users.

There are multiple strains of cannabis, however, and some contain much lower levels of THC, such that the plant has little to no psychoactive effect. One such variety is hemp, which is defined as a form of the cannabis plant containing a THC concentration of not more than 0.3 percent. Both hemp and marijuana contain the chemical compound CBD.

When CBD oil is derived from hemp, and thus contains less than 0.3 percent THC, it does not have any known impairing effects that employers would need to be concerned about in the workplace. Moreover, CBD oil derived from hemp generally will not cause a positive result in employment-related drug testing, since most drug tests look for evidence that an employee has ingested THC rather than CBD.

Congress Approves Use of Hemp Products and CBD in the 2018 Farm Bill

In December 2018, the U.S. government passed the 2018 Farm Bill, also known as the Agriculture Improvement Act of 2018 (AIA), which legalized industrial hemp at the federal level. The AIA removed hemp from Schedule I of the Controlled Substances Act and reclassified it as an agricultural commodity. Thus, following the AIA’s passage, hemp-derived products, including hemp-derived CBD, are legal at the federal level. Importantly, however, the AIA does not preempt state and tribal laws that regulate hemp in a more restrictive manner.

Did the AIA Decriminalize Marijuana?

Must an Employer Accommodate Recreational Marijuana Use?

The AIA only permits the cultivation and production of the hemp plant, including CBD oil derived from hemp. The Controlled Substances Act continues to classify marijuana and CBD products derived from marijuana as illegal Schedule I substances.

Whether CBD oil derived from marijuana is legal at the state level varies greatly from jurisdiction to jurisdiction. Currently, 33 states, as well as the District of Columbia, have legalized the personal use of marijuana for medicinal purposes, and 10 states plus the District of Columbia allow marijuana to be used for recreational purposes.

Despite the recent proliferation of legislation surrounding marijuana, no jurisdiction to date has required an employer to accommodate recreational marijuana use. Employers are generally permitted to adopt drug-free workplace policies and make employment decisions relating to recreational marijuana use by an employee. Employers are also allowed to refuse to hire prospective employees for failed drug tests stemming from the purely recreational use of marijuana.

Must an Employer Accommodate CBD Products Being Used for Medicinal Purposes?

Whether an employer must accommodate the use of CBD oil for medicinal purposes will vary by jurisdiction and will depend greatly on whether the CBD oil is derived from hemp or marijuana.  Where the CBD oil is derived from hemp and is being used for medicinal purposes, employers will generally accommodate its use, unless they are within a jurisdiction that has taken a more restrictive approach to hemp-derived CBD than the federal government.

With respect to marijuana-derived CBD oil containing more than 0.3 percent THC, employers in states without a medical marijuana statute need not allow its use by employees. Where medical marijuana is legal at the state level, however, a state-specific analysis is required, as some, but not all, of these states provide protections for employees who use medical marijuana. That being said, states generally do not require an employer to allow the use of marijuana on its premises, nor must an employer tolerate an employee being under the influence while performing his or her duties.

The varying nature of CBD products may also present some obstacles for employers. The majority of CBD products are not regulated by the FDA and run the risk of containing more than the federally permissible amount of THC, even if sold in a state that does not permit the sale of marijuana products. Thus, there is a possibility that an employee could use what he or she believes to be a legally permissible, hemp-derived CBD product, but the unregulated product could trigger a positive test result for THC. In those types of situations, an employer may not definitively know whether the positive result was triggered by CBD oil or marijuana use.

Takeaways for Employers

The growing use of medical and recreational marijuana in a number of states has caused some employers that are not required by federal or state laws or regulations to test for drugs to either halt their drug testing programs or, in some instances, remove marijuana from the tests. Not all employers either can or desire to take that approach, particularly if the employees operate large or expensive power equipment in the manufacturing or transportation sectors. Due to the ever-evolving landscape and multiple layers of complexity in this area, employers may want to carefully examine the medical marijuana laws in their jurisdictions before taking action against an applicant or employee who claims to use marijuana or CBD oil for medicinal purposes.


 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

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