Employers May Need to Accommodate Use of CBD Oil.
More and more often, employees who test positive for marijuana – in violation of company policies – are claiming that it must be a false positive due to their use of CBD oil (a non-psychoactive hemp-based product).
Blue Cross & Blue Shield of Florida, Inc., recently learned the hard way that failing to accommodate an employee’s use of CBD oil to treat migraines may violate the Americans with Disabilities Act.
In Huber v. Blue Cross & Blue Shield of Florida, Inc., a federal court in Louisiana refused to grant summary judgment on the employee’s claims that Blue Cross wrongfully terminated her because of her disability and failed to accommodate her prescribed use of CBD oil to treat her migraines.
Blue Cross claimed it terminated her for a positive drug test and that the levels of marijuana in her blood exceeded the levels CBD oil would cause. The employee asserted it was a false positive and questioned whether Blue Cross could disprove that her prolonged use of CBD oil and, perhaps, interactions with other medications caused the test result.
The court ruled the issues were too close to call and had to be determined by a jury.
The case should be seen as a flashing smoke signal to employers – be reasonable and not overly aggressive in taking action against an employee who has legitimate evidence of a false positive marijuana test due to legally prescribed treatments, including CBD oil. Judicial, statutory, and societal views on the use of marijuana and related products are rapidly changing, conjuring up the famous lyrics of Bob Dylan:
And don’t criticize What you can’t understand Your sons and your daughters Are beyond your command Your old road is rapidly agin’ Please get out of the new one If you can’t lend your hand For the times they are a-changin’