CBD Use and Disability Accommodation

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CBD Use and Disability Accommodation

By Yvette Farnsworth Baker, Esq., Senior Legal Consultant at Current Consulting Group (CCG)

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

A federal court out of Louisiana recently issued a ruling that could impact workplace accommodations for medical cannabidiol (“CBD”) users. The case of Huber v. Blue Cross & Blue Shield of Florida, Inc. involved an employee who sued her employer, Blue Cross & Blue Shield of Florida (“BCBS”), for disability discrimination after she was terminated for a positive THC test. The Huber case could potentially require employers to make allowances for employees with disabilities to test positive for THC if they use medical CBD to treat a disability. This is an issue of first impression, as no courts across the country have issued a written decision on this issue up until now. The case implicates the Americans with Disabilities Act (“ADA”), the legality of hemp and marijuana under federal law, and the medical use of cannabis products.

The ADA, Medical Marijuana, and Medical CBD

The ADA requires certain employers to provide workplace accommodations to employees with disabilities. An accommodation generally means that an employer adjusts working conditions to allow an individual with a disability the opportunity to perform the job. Not all employers are required to comply with the ADA, and an “individual with a disability” is defined carefully under the ADA. As well, employers are not required to accommodate an employee if the accommodation would put an “undue burden” on the employer.

Thus far, the ADA has not protected medical marijuana use. The reason is due to a clause in the ADA which states:

“the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”¹

This means that if an organization or employer discriminates against a person with a disability on the basis of that person’s illegal drug use, ADA protections do not apply. Because marijuana remains illegal under federal law, and the ADA is federal law, marijuana use is considered the illegal use of drugs. This is true even when marijuana use complies with state law.

CBD is slightly different from marijuana in its legality, however. When CBD is hemp-derived rather than marijuana-derived, it can be considered legal.² If a CBD product is legal, then use of that product would not be considered the “illegal use of drugs” for purposes of the ADA. Thus, ADA protections could potentially apply to a person with a disability who uses CBD.

The Huber Decision

The case of Huber v. BCBS involved an employee of BCBS who used CBD to treat hemiplegic migraines.³ She received accommodations from her employer for her migraines beginning in 2006, including medical leave. In 2017 her doctor recommended “non-psychoactive hemp-based CBD oil” to treat her migraines. The CBD oil seemed to improve her condition, and her performance at work also appeared to improve as a result. She took fewer days of leave following her CBD use and her performance at work was rated highly as well.

In 2019, Huber was required by BCBS to take a drug test. BCBS was involved in a federal contract that required drug testing; however, Huber herself was not working on the federally contracted project. Huber reminded her supervisor of her disability and that she took medical CBD to treat it. Her supervisor advised her to “play along” and said that the results would not affect her job. However, after her drug test was reported positive for THC BCBS terminated her employment.

The appellate court ruled that BCBS was not entitled to summary judgment because they did not prove that Huber was under the influence of illegal, non-prescribed controlled substances while working. The court found that overlooking a positive THC test could potentially be a reasonable accommodation for the medical use of CBD by a disabled employee. The court ruled that BCBS was not entitled to prevail based solely on the law, but that the case needed to go to a jury to rule on the facts based on the evidence. This means that the court did not definitively decide that Huber was entitled to accommodation for the use of CBD but did leave open that possibility.

Going Forward

This issue has not been decided once and for all but will be one to watch going forward. If an employee with a disability requests accommodation for CBD use, an employer may be wise to engage in an interactive process, consult legal counsel, and consider the best course of action for that particular situation. It is unclear whether courts will consider this issue again in the future and whether employers will receive any further guidance. Like most issues that involve legal or quasi-legal cannabis products and the workplace, employers should stay informed from trusted sources about their rights and obligations.

End Notes:

¹ 42 USC 12210.

² The legality of CBD is not always black and white, so I hesitate to assert that all CBD products are legal.

³ Huber v. Blue Cross and Blue Shield of Florida, Inc., Civil Action 20-3059 (E.D. La. May. 13, 2022).

© 2010-2022 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.

 

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