March 11 Tip of the Week

“Disability Discrimination and Marijuana Use”

          

            As marijuana use, both recreational and medical, has become legalized in many states, employers have been tasked with trying to navigate these new rules and their longstanding drug testing and drug free workplace policies.  While the legalization of marijuana has not prevented employers from requiring employees to report to work free from the influence of drugs and alcohol, the way that drug tests are administered, both for cause and post offer testing, has been impacted by these new rules.  Marijuana use, because of the way that the drug gets into an employee’s bloodstream, is hard to test for and is even harder to determine when the employee being tested “is under the influence.”  For this reason, drug testing centers and employers are struggling with how tests should be conducted and what information should be shared.  A recent case in the Sixth Circuit Court of Appeals, Fisher v. Airgas USA, LLC, No. 23-3286, Fisher v. Airgas USA, LLC, et al., addressed this issue. 

            In the Fisher case, an operations technician at Airgas USA, Murray Fisher, was diagnosed with liver cancer. As an operations technician, the employee worked with power tools and combustible gases and drove a company vehicle.  After his liver cancer diagnosis, Mr. Fisher continued to work for nine months without any impact on his job performance.  Mr. Fisher was hired in October 2019, was diagnosed with liver cancer one month after he was hired, and, in August 2020, he requested time off for surgery and to attend doctor’s appointments to treat his cancer.  After eight weeks of medical leave, Mr. Fisher returned to work at Airgas but he was still experiencing pain and discomfort from his ongoing medical treatments and, on a friend’s advice, he began using a product called “Free Hemp,” a teaspoon per day to manage pain. 

            In November 2020, Airgas selected Mr. Fisher for a random drug test.  The drug testing contractor informed Airgas that Mr. Fisher tested positive for marijuana.  Fisher, upon learning of the positive test result, denied using marijuana, disclosed his use of Free Hemp stating that it may have caused a false positive result, and asked for a retest.  Airgas agreed to a retest of Fisher’s drug testing sample that resulted in the positive test result, but did not tell the drug testing contractor that Fisher was using Free Hemp and did not inquire as to whether that product could have resulted in a false positive.  Not surprisingly, due to Airgas’s failure to share this information with the drug testing contractor, Mr. Fisher’s second test (of the same sample) resulted in another positive result for marijuana. 

            On his own, Mr. Fisher reached out to the drug testing contractor’s medical review officer about his false positive test result.  The medical review officer informed Mr. Fisher that his positive test result was for tetrahydrocannabinolic acid (“THCA”), which is a different substance from delta-9 tetrahydrocannabinol (“THC”), which is more commonly associated with marijuana use. 

            Based on the second positive drug test, Airgas fired Mr. Fisher.  Mr. Fisher sought reinstatement based on his belief that the test result was a false positive and that the drug testing contractor had mislabeled the THCA in his system as marijuana.  Airgas’s Vice  President of Human Resources disputed Mr. Fisher’s allegations and stated that the Chief Medical Officer of the drug testing contractor informed Airgas that his sample contained THC and that Fisher’s use of a legal hemp product would not cause the false positive.  Despite this claim from the VP of HR, the chief medical officer from the contracting agency submitted an affidavit confirming that Fisher’s sample contained THCA and not THC.  Airgas refused to reinstatement Mr. Fisher and he sued the company in state court for disability discrimination. 

Airgas moved the case to federal court and filed a motion for summary judgment, which was granted on the basis that the reason provided by Airgas for terminating Mr. Fisher was not pretextual.  As part of his response to Airgas’s motion for summary judgment, which relied on an affidavit from the contractor’s chief medical officer, Fisher filed a motion to strike the medical officer’s affidavit, which was denied.  Fisher then appealed the court’s ruling granting summary judgment to Airgas. 

The appeals court reversed the grant of summary judgment to Airgas on the basis that the lower court, in applying the burden shifting rule, applied the “honest-belief rule.”  Under this rule, an employer must show that they had an honest belief that they had a nondiscriminatory reason for firing an employee.  If the employer successfully makes this showing, an employee cannot then establish that the reason was pretextual even if the employer’s honest belief is later shown to be mistaken or baseless.  In determining that Airgas did not meet the burden to demonstrate an honest belief in the reason for terminating Mr. Fisher, the court pointed to the company’s failure to provide any information to the drug testing contractor regarding the reason for the retest.  Specifically, Airgas did not share with the contractor Mr. Fisher’s statement that he was using Free Hemp and did not ask if the use of hemp could cause a false positive.  The court characterized these failures by Airgas as evidence that they did not make “a reasonably informed and considered decision” when they decided to terminate Mr. Fisher on the basis of his positive drug test. 

What does this mean for employers?  The drug testing rules have been turned upside down by the legalization of recreational and medical marijuana use and the proliferation of hemp and cannabis related products for a variety of reasons:  pain relief, in drinks or food products, etc.  When engaging in drug testing, both post offer and during employment, employers must be aware of the laws in the state in which they perform those tests and ensure that they are giving their employees every opportunity to explain or defend a positive drug test.  A failure to do so can result in legal action similar to what Airgas faced in this case. 

myHRcounsel can assist in developing and reviewing drug testing policies and in managing situations involving drug testing, whether it be responding to false positives, establishing rules for random drug tests, or other compliance issues.