An employee in a safety-sensitive job who has been diagnosed with cancer is selected for a random drug test. The test result comes back positive for TCHA (tetrahydrocannabinolic acid — are you sorry you asked?). The employee claims he’s using a legal cannabis product, not smoking pot, to help with the pain from his medical condition. The employer allows the employee to get his urine sample retested by a different lab. The retested sample also comes back positive. The employee is fired for violating the employer’s drug policy.

The employee sues for discrimination under his state disability rights law, in this case the Ohio Civil Rights Act. The employer gets the case dismissed, but the employee appeals. A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit finds that the employer will have to face a jury trial.

(As an aside, the Sixth Circuit opinion was written by Raymond Kethledge, who was on President Trump’s short list of Supreme Court nominees for the seat now held by Justice Brett Kavanaugh.)

OK, back on topic. What went wrong for this employer?

Among other things, the plaintiff was using a product called “Free Hemp,” which he believed might alleviate his pain. He was not smoking pot, he said, and the active ingredient in Free Hemp is THCA, not THC. According to Leafly, “THCA is not intoxicating if ingested. Chemically, it has an additional molecular carboxyl ring, which prevents it from binding to receptors in the brain responsible for feeling high.” (I can’t vouch for the Leafly website, so believe this at your own risk.) Free Hemp was a legal product in Ohio, so the plaintiff was not breaking the law by using it.

Even if all that’s true, the employer argued, we had an honest belief that he was under the influence of marijuana when we fired him, which means we didn’t unlawfully discriminate against him or refuse to provide a reasonable accommodation. As already noted, the Sixth Circuit didn’t buy what the employer tried to sell.

Scenarios like this are going to become increasingly common as medical marijuana and non-prescription use of legal cannabis products continue to become widespread. For employers who want to protect themselves, here are a few suggestions:

No. 1: Put a policy in place before something happens. While you have the time to think things through, develop a general policy on the use of legal products that might impair work performance or create a safety hazard. Realize that you may need one policy for safety-sensitive jobs and a different (more lenient) one for jobs that are not safety-sensitive. I generally suggest publishing the policy, waiting a month or so, and then enforcing it. The main reason for the month-long wait is that it may take that long for marijuana to get out of employees’ systems.

No. 2: If you have a no-cannabis policy in a state where the use of cannabis is legal, then you will not have a problem with the Americans with Disabilities Act. That’s because the ADA does not protect “current users of illegal drugs,” and marijuana is still an illegal drug under federal law. It’s also legal to comply with other applicable federal laws that prohibit marijuana use, like the regulations of the U.S. Department of Transportation.

But if your state has legal cannabis use and its own disability-rights law, beware. You may have to be willing, under state law, to consider allowing employees to use cannabis products as a reasonable accommodation for their disabilities. Also, if you take action against any employees for using legal cannabis products, you could have exposure under your state’s “lawful products” statute if your state has one. Approximately 29 states have laws that generally say an employer cannot take action against an employee based on the employee’s lawful use of lawful products during non-working hours. The laws were originally intended to protect tobacco users (remember them? I don’t), but they could also arguably apply to users of legal cannabis products or legal marijuana.

No. 3: Realize that the “retest” option is pointless when an employee has used legal cannabis products. Many state laws give an employee with a positive drug test the right to have the same sample retested by a different approved laboratory. Retests can be a great way to catch testing and lab errors, but they are not going to help with an admitted cannabis user who tests positive for marijuana. The reason? Of course the retest will come back positive! Your employee has already admitted to using legal cannabis! The lab didn’t mess this up. In these circumstances, a retest is a waste of time and money.

No. 4: Instead of a retest, try these:

• Ask the employee to bring in a note from a health care provider. Even if the cannabis use is unprescribed, the HCP might be able to confirm that the employee needs an over-the-counter product for pain management and that cannabis products can be helpful for that purpose. It could even be that the HCP is the one who recommended that the employee use those products. If you can’t get a note from an HCP, you might be able to get a receipt from the dispensary.
• Based on safety considerations, engage in the interactive process with the employee and determine whether a reasonable accommodation can be made. If the employee can’t safely perform the job using the legal product, then consider placing the employee on a medical leave, Family and Medical Leave, or short-term disability rather than terminating the employee.
• Document the interactive discussions and the reasons for the decision reached.

No. 5: Let NyQuil be your guide. (Not a product endorsement!) Generally, treat legal hemp/marijuana/cannabis products – in states where the use is legal – the same way you treat alcohol, legal prescription medications, and legal over-the-counter medications that are mind-altering. (I recently had a cold, and DayQuil/NyQuil got me through it, but, boy, talk about mind-altering . . .!) If employees in safety-sensitive positions use any of these products, you might have to require them to disclose the use and then place them out of work while they are using, or temporarily reassign them to a non-safety-sensitive position.

Source JD Supra

https://www.jdsupra.com/legalnews/accommodating-cannabis-a-how-to-for-5880743/