Skip to content

How Drug Testing Could Hurt Your Business

January 23rd, 2020 Emma O'Connor

drug testing

As more states legalize marijuana and CBD products become extremely popular, employers are having difficulty enforcing a drug and alcohol-free work policy.  Imagine that one of your star employees fails a random drug testing, but he denies using any illegal substances.  He claims that his doctor recommended using CBD oil to ease his arthritis-induced wrist pain. If you want to maintain your zero-tolerance policy, do you fire him?

The passage of the Farm Bill in 2018 federally legalized the cultivation of hemp, non-intoxicating varieties of Cannabis with 0.3% or less THC content.  It removed hemp from the Food and Drug Administration’s schedule I substances which are strictly regulated and can only be prescribed by physicians.  Today, one in seven adults consume CBD in the form of lotions, oils, coffee, cookies, and more for its positive health benefits: alleviating anxiety, depression, acne, pain, and heart disease.  Nevertheless, common police field tests and employer drug tests still cannot discern between THC and CBD levels.  As a result, the use of legal CBD products can potentially lead to professional and legal consequences.

State Policy Variations

Firing or even reprimanding your star employee for failing the drug test could pose several legal problems for your business.  His termination could provide legal ammunition for a lawsuit in several states.  Colorado, California, Illinois, Minnesota, Montana, Nevada, New York, North Carolina, Tennessee, North Dakota, and Wisconsin prohibit employers from firing workers for the use of lawful products to protect employees’ off-duty rights.  In other words, workers cannot be punished for using CBD products because they are legal on the state and federal level. Thus, firing or disciplining your star employee in these eleven states could result in a lawsuit.

Disability Violations

Firing your star employee could also be interpreted as a violation of the Americans with Disabilities Act as arthritis is considered a debilitating disability in many cases. Employers with more than 15 employees must provide reasonable accommodations to workers with disabilities. Further, the ADA prohibits employers from discriminating against employees with disabilities or retaliating against them for asserting their rights. Therefore, firing your star employee for alleviating his arthritis pain could easily qualify as disability discrimination.

Inconsistency is Discrimination

Finally, being inconsistent with your enforcement of a drug and alcohol work policy could also make your business vulnerable lawsuits.  Let’s say that you don’t reprimand or terminate your star employee because he has worked for you for ten years.  In this time, he has proven to be a reliable worker that is true to his word, so you trust that he is only using CBD products. A female employee fails the same random drug test and also claims that she uses CBD oil for medical purposes, but you decide to fire her because she is a new hire. Your inconsistent application of the zero-tolerance policy gives the female worker a legal claim against you for gender discrimination.

Seek Legal Assistance

If you need guidance on drug testing laws, seek legal assistance today. The Working Solutions Law Firm, located in New York City, can assist you. Contact us today at (646) 430-7930 to schedule a free case evaluation and receive experienced legal counsel.