CBD Use and Work Drug Tests, Disability Discrimination? – The National Law Review

A federal court in Indiana dismissed an employee’s lawsuit after he tested positive for marijuana due to alleged CBD use and claimed that his termination was discriminatory on the basis of a disability.  Rocchio v. E&B Paving, LLC, and Int’l Union of Operating Engineers Local 103, Case No. 1:20-cv-00417 (S.D. Indiana March 31, 2022).
Rocchio was an engineer who was subject to random drug testing under his employer’s drug testing policy.  The policy required testing for marijuana and also provided for termination in the event of a positive drug test result.
In July 2019 Rocchio was required to take a random drug test and tested positive for marijuana.  He claimed that the positive test result was due to his use of CBD oil.  His employment was terminated in accordance with the Company’s policy.
Rocchio alleged that the employer and the union violated the Americans with Disabilities Act by terminating him and failing to rehire him.  While Rocchio did not dispute that an employer may prohibit illegal drug use, he argued that it violated the ADA to take an adverse employment action against him due to the use of a legal drug.  The court disagreed because there was no evidence that the employer knew that Rocchio was using CBD oil rather than marijuana at the time it made the termination decision.  The employer terminated Rocchio based on objective drug test results that indicated the presence of marijuana compounds.  Although Rocchio claimed that he told the third-party administrator (of the drug testing program) that he was using CBD oil, there was no evidence that that information was provided to the employer.
Rocchio also argued that the employer’s policy of terminating all employees who test positive “categorically regards” them as users of illegal drugs and also regards them as disabled because safety was the rationale for the drug testing policy.  The court stated that “it did not follow” that an employer who conducts drug testing believes that everyone who tests positive is disabled under the ADA.  Moreover, there was no evidence that the employer believed that Rocchio was disabled, or that he was terminated because of any perceived disability.
About this Author
Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.
Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S….
 
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