Louisiana employers should not reflexively fire workers who fail drug tests when they have been prescribed hemp-based cannabidiol (CBD) oil for medical conditions, the outcome of a federal lawsuit indicates.
Attorney Andrew Burnside, who represents employers in both state and federal courts, said the case of Huber v. Blue Cross and Blue Shield of Florida (BCBS) in the Eastern District of Louisiana should lead employers to provide accommodations for false positives when workers’ medical histories show a legitimate use of CBD.
The case was settled and ultimately dismissed on July 1, but details of the agreement remain confidential, however Judge Mary Ann Vial Lemmon said in her dismissal order that the parties would bear their own legal costs. Louisiana resident Michelle Huber, a BCBS Florida customer service representative who worked remotely, accused her employer of violations of the Americans With Disabilities Act and the Louisiana Employment Discrimination Act.
Huber was terminated from her job after an employer drug test came up positive in 2019, even though the plaintiff provided medical documents showing a doctor recommended that she take CBD oil as a treatment for hemiplegic migraines.
Burnside, who co-authored an article about the case in the National Law Review, said employers must be careful in evaluating false positives relating to employee use of CBD oil to avoid legal liabilities.
“The takeaway is that where CBD use is involved, the employer and their (medical review officer) have to dig deeper to understand what might be going on,” Burnside said in an email to the Louisiana Record.
CBD does contain trace amounts of THC, the psychoactive compound found in the cannabis plant, but under typical circumstances CBD does not trigger positive test results, he said.
“But Huber’s situation was different because of the various drugs she was taking, including THC, and the evidence she mustered that CBD plus the other drugs would create a positive,” Burnside said.
Another fact brought out in the litigation was that BCBS relied on a 15-nanogram-per-milliliter threshold for determining negative employment consequences, according to a judicial order dismissing BCBS’s motion to dismiss the case in May. Under Louisiana law, negative employment outcomes tend to occur in the 50- to 100-ng/mL range.
The dismissal order by Judge Lemmon led to discussions that produced the confidential settlement in the case, court records show.