Labor & Employment News Alert

An Indiana District Court Addresses the Interplay between CBD Usage, Drug Testing, and the ADA

April 8, 2022

By: Lucero Tennis Kieffer and Chad J. Sullivan

            In 2018, Indiana legalized the sale and use of cannabis-derived CBD oil. Marijuana use, however, both recreational and medicinal, is still illegal in Indiana. While many of Indiana’s neighboring states are legalizing (1) marijuana for recreational and/or medicinal use; and/or (2) the sale and use of CBD oil, Indiana employers are faced with the following dilemma:

• Can you terminate an employee for a positive drug test?
• What if the test was positive for CBD oil and not marijuana?

            Recently, a federal district court in Indiana, Rocchio v. E&B Paving, LLC, 120CV00417JRSTAB, 2022 WL 972762 (S.D. Ind. Mar. 31, 2022), addressed this issue under the Americans with Disabilities Act (“ADA”) and dismissed the employee’s disability discrimination suit despite the employee testing positive for marijuana due to the employee’s alleged CBD use.

            John A. Rocchio (“Rocchio”) was an engineer at E&B Paving, LLC (“E&B”). E&B had a zero-tolerance policy. E&B’s drug testing policy required all employees to submit to random drug testing and provided for immediate termination in the event of a positive drug test result. In 2019, E&B’s third-party drug test administrator scheduled Rocchio for a random drug test and Rocchio tested positive for “marijuana metabolites.” The third-party administrator notified E&B that Rocchio tested positive for marijuana, and as a result, E&B terminated his employment in accordance with its zero-tolerance policy. However, Rocchio claimed his positive test result was due to his use of CBD oil, and brought suit against his employer and union claiming, among other things, that E&B and his union violated the ADA when they terminated and failed to rehire him.

            Specifically, Rocchio argued that E&B “regarded” him as having a disability (i.e., Rocchio argued that he was “terminated because of a perceived impairment and not because of the positive drug test”). He argued that while the ADA permits employers to prohibit the use of and test for the use of illegal drugs, it does not permit an employer to ban legal drugs or test for legal drugs. In other words, Rocchio argued that an employer violates the ADA if the employer takes an adverse action against an employee who tests positive from the use of CBD oil, a legal substance. While this argument is certainly novel, the court disagreed. The court held that the ADA’s lack of explicit permission for an employer to ban the use of legal substances does not mean the ADA prohibits such ban. Rather, the court noted that an “employer can fire an employee for any reason, fair or unfair,” so long as the decision to terminate is not unlawful. The court further pointed out that there was no evidence that E&B knew the positive test result was due to CBD oil rather than marijuana at the time it terminated Rocchio. While Rocchio informed the third-party administrator that he did not use marijuana but used CBD oil, the report from the third-party administrator did not relay this information to E&B. Instead, the court held that “based on the objective test results and nothing else, [E&B] terminated [Rocchio].” The court also stated that it was immaterial that Rocchio later informed E&B and the union that the test result was due to CBD oil and not marijuana.

            Rocchio also argued that E&B’s policy of terminating employees who test positive for drugs “categorically regards” them as users of illegal drugs and, because E&B cites safety concerns as the rationale behind the policy, as having an impairment under the ADA. The court stated that “it does not follow” that an employer who has a drug testing policy for safety reasons believes that everyone who tests positive is disabled under the ADA. The court also stated that “an employer does not have to tolerate unacceptable behavior . . . even when that behavior is precipitated by an employee’s disability.” The court ultimately found no ADA violation and granted the employer’s motion for summary judgment.

            Despite Rocchio engaging in legal, off-duty behavior, he was still subject to termination for a positive drug test. This case seems to suggest that the ADA does not afford him legal protection for such use. While this may be seen as a victory for Indiana employers, it is important to note the following:

• The testing in this case was random and in accordance with the employer’s random drug testing policy. This case did not address reasonable suspicion or probable cause testing.
• The employer did not administer the drug test, nor did it select the employee. Rather, a third-party administrator selected the employee and performed the testing.
• The employer’s zero-tolerance policy was uniformly applied (i.e., the employer consistently terminated employees who received a positive test result).
• The employee did not disclose his CBD usage to the employer prior to the testing, nor was this information in the report that the employer received.