North Carolina employees are increasingly testing positive for illegal marijuana use while contending that they were only using legal hemp-derived products sold over the counter in this State. Some employees assert that these products are necessary to treat a disability, such as stress, anxiety, or pain. This intersection of positive drug tests for alleged disability-related legal hemp use and an employer’s ability to enforce its drug testing policy was recently analyzed in an opinion issued by the United States Court of Appeals for the Fourth Circuit, providing helpful guidance to employers facing these complex issues.
In Anderson v. Diamondback Inv. Grp., LLC, (available here) plaintiff Anderson filed suit in the Middle District of North Carolina after she was terminated for failing two company drug tests. Anderson suffered from anxiety and claimed that when left untreated she would suffer from fear of leaving her home, muscle and joint pain, and spasms, and debilitating pain rendering her body nearly immobile. Anderson alleged that she used “hemp-derived products,” including CBD oil and a combination of Delta8, Delta9, Delta10, THC-O, and HHC, to settle her anxiety symptoms during nonworking hours. She maintained that the hemp-derived products she used were legal and never made her high or affected her work performance, and that she never smoked marijuana or used illegal drugs.
Despite these assertions, a “pre-employment” urinalysis screening during Anderson’s 90-day introductory period tested positive for marijuana. Diamondback gave Anderson another opportunity to test, which again returned positive. At that point, Diamondback terminated Anderson under its drug testing policy based on her two positive results. In turn, Anderson sued Diamondback for (1) disability discrimination under the ADA; (2) failure to accommodate under the ADA; and (3) discrimination for the alleged lawful use of lawful products during nonworking hours under N.C. Gen. Stat. §95-28.2. The district court awarded summary judgment to Diamondback on all claims, and Anderson appealed.
On appeal, Anderson argued that Diamondback’s policy of disciplining her for positive drug results inherently discriminated against disabled employees. The Fourth Circuit rejected this argument, holding that the two positive drug tests served as a legitimate, nondiscriminatory reason for Anderson’s termination under the ADA. The Fourth Circuit explained that “Diamondback was free to implement a drug testing policy that results in the termination of an individual taking what the unchallenged drug test results showed to be an illegal drug—marijuana—to treat a disability, if that policy doesn’t have, as a goal, the intentional exclusion of any individual taking a lawfully prescribed drug to treat a disability.” Addressing Anderson’s failure to accommodate claim, the Fourth Circuit emphasized that Anderson never requested any reasonable accommodation “of foregoing Diamondback’s drug testing policy and allowing her to use legal hemp to treat her disability,” nor did she explain how that accommodation would be “reasonable” under the ADA.
With regard to Anderson’s claim under North Carolina’s lawful use of lawful products statute, the Fourth Circuit held that Anderson failed to prove the hemp-derived products she used were legal in this State. The Fourth Circuit noted that under North Carolina and federal law, certain hemp-derived products—those “with a delta-9 [THC] concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis,”— are legal because they do not come within the definition of an illegal controlled substance. Anderson argued that because the hemp derived products she used were sold “over the counter” in gas stations and stores around North Carolina, the legal purchase of the products showed that they were legal under North Carolina law. The Fourth Circuit disagreed, emphasizing that “these products are notoriously difficult to regulate and often contain higher concentrations of THC than permitted by law (even if they advertise otherwise).” Without evidence of the delta-9 THC concentration of these products, the Fourth Circuit reasoned that no factfinder could reasonably find that they were indeed “lawful”—a prerequisite to the applicability of North Carolina’s lawful use of lawful products statute.
The Court further held that even if the hemp-derived products Anderson used were legal, her lawful products claim would still fail because Diamondback’s drug testing policy, targeted to maintain workplace safety and efficiency, falls within an exception to the lawful products statute that allows an employer to “[r]estrict the lawful use of lawful products by employees during nonworking hours if the restriction relates to a bona fide occupational requirement and is reasonably related to the employment activities.” The Court recognized that Diamondback’s drug testing policy designed to maintain a safe and productive work environment constitutes a bona fide occupational requirement reasonably related to the employment activities.
This case is a major win for employers in North Carolina. While employers have a duty to provide reasonable accommodations to employees with disabilities under the ADA, a positive test result like that in Anderson may still serve as a legitimate, nondiscriminatory reason for termination, even against an argument that the alleged consumed drug was used to treat a disability. Additionally, under North Carolina’s lawful use of lawful products statute, employees may be required to provide proof that the alleged legal hemp-derived products they are using do not contain a delta-9 THC concentration of more than three-tenths of one percent (0.3%) on a dry weight basis. If you are implementing a drug testing policy or need your current policy reviewed, the employment lawyers at Poyner Spruill LLP are available to assist.
