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).
The employee 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, the employee 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.
The employee alleged that the employer and the union violated the Americans with Disabilities Act by terminating him and failing to rehire him. While the employee 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 the employee was using CBD oil rather than marijuana at the time it made the termination decision. The employer terminated his employment based on objective drug test results that indicated the presence of marijuana compounds.
Although the employee 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.
The employee 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 the employee was disabled, or that he was terminated because of any perceived disability.
Kathryn J. Russo is an attorney with Jackson Lewis in Long Island, N.Y. © 2022 Jackson Lewis. All rights reserved. Reposted with permission.
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