Employers in California have a fair amount of discretion when it comes to whether to hire or fire someone for use of illegal substances. But what of legal substances?
Our Orange County employment lawyers know the question has gotten thornier as more states have legalized marijuana and since hemp-dervived CBD (the non-intoxicating cannabis compound) was legalized at the federal level with the 2018 Farm Bill.
As long as marijuana remains illegal under federal law, employers will likely retain the right to fire employees who test positive for the drug in routine screenings (so long as the screening process isn’t applied in a way that is discriminatory to any protected group). That’s not to say employers are wise to continue with such a policy, given the growing public acceptance for recreational and medicinal use of the drug. Strict no tolerance policies could result in companies losing valuable talent for no good reason. But they’d still technically be within their right to do it. They are also within their rights to prohibit marijuana on their premises, even if an employee uses the drug for medicinal purposes.
The rights of employees who use CBD (cannabidiol) products is a bit murkier. We’re just now beginning to see courts weigh in on worker rights where CBD is concerned.
There is no clear data on just how many workers in the U.S. have been disciplined or fired when they tested positive for THC after using CBD products. We do know that there have been several publicized incidents, and it’s likely an issue that will continue to stymie employers until more courts reach a consensus.
In New Jersey, state lawmakers have passed workplace protections for workers and job applicants who test positive for the marijuana and use it for medicinal reasons. Oklahoma has similar laws, though they do not apply to those who have safety-sensitive jobs or no medical reason to use the drug.
In North Carolina, a 54-year-old worker who used CBD oil to treat a medical condition was fired from her job as a longtime supervisor of a car auction business when she tested positive for THC. Her employer argued the firing was justifiable because THC is an illegal substance. THC, the psychoactive ingredient in marijuana, exists in very small levels (less than 0.3 percent) in legal hemp and CBD products. The ex-employee sued for wrongful termination, and a magistrate ruled in November that her case can move forward. The Charlotte Observer reported the judge based his reasoning on the fact that CBD oil is legal under federal and North Carolina laws – even if it contains trace amounts of THC.
Across the country, more than two dozen federal law enforcement officers have been disciplined after testing positive for THC after using CBD. Those agencies have a zero tolerance policy when it comes to drug use.
In Utah, a former school bus driver was fired after testing positive for THC in a random drug test. She insisted she had not been using marijuana, but instead was taking CBD to help relieve her stress. The website of the company that sold the CBD said it contained less than 0.1 percent of the substance, which was within the state-permitted level. She also said a trainer told her that using CBD products wouldn’t cause her to fail a drug test. A clerk at the store where she purchased the bottle told her the company tested its own employees for THC after use of its own CBD products – and all those tests came back negative.
Some workers say they were duped by manufacturers. In one case, a New York truck driver is suing a company that sells CBD for deceptive trade practices. The CBD product he used was marketed for treatment of pain and inflammation and promised it contained 0.00 THC. He was fired from his job as a hazmat trucker – one he’d held for 10 years – when he tested positive for “a high level of THC.” That failed drug test not only cost him the job he had, but also prohibits him from working in the same capacity for other trucking companies. He sent the bottle of CBD to a lab to be tested, but the lab refused to test it or send it back to him, citing concerns that they could be held liable for transport of an illegal substance.
If you have been fired or disciplined for use of CBD in California, our Orange County employment lawyers are available to answer your questions about the viability of your case.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949-375-4734.
Weed? CBD? New products, new laws are causing confusion in the workplace, Jan. 21, 2020, By Charisse Jones, USA Today