An employer that fired an employee for a positive marijuana test may have discriminated against him too.


Right or wrong, an honest belief may be all it takes to proffer a nondiscriminatory reason for an adverse employment action.

Do you remember that employer that terminated 65 employees seeking FMLA simultaneously with the same doctor’s notes? The Fourth Circuit Court of Appeals concluded that the company suspected shenanigans, investigated the matter thoroughly, and terminated these employees without violating the Family and Medical Leave Act based on its reasonable good-faith belief that these employees had engaged in fraud — even if by some miraculous coincidence they suffered soft-tissue injuries at the same time.

But when an employer that suspects employee misconduct does not make a reasonably informed and considered decision, it may be unable to avail itself of the so-called “honest-belief rule.”

I’ll give you an example.

I recently read a Sixth Circuit decision involving an employee who was terminated for failing a drug test.

What’s wrong with firing an employee who fails a drug test, you ask?

In this case, the plaintiff had liver cancer and took approved medical leave. After he returned to work, he still suffered from pain and nausea. So, on the advice of a former coworker (and unbeknownst to the defendant), the plaintiff used a hemp product to help manage the pain. Notably, the defendant had no policy prohibiting its use.

Shortly after that — you guessed it — the defendant selected the plaintiff for a random drug test, which came up positive for “marijuana.” In response, the plaintiff told the defendant about using hemp, denied using marijuana, and asked for a retest. The defendant agreed but used the same sample without telling the drug tester that the plaintiff had been using hemp or inquiring whether hemp might have caused a false-positive test for marijuana.

Meanwhile, the plaintiff himself contacted the drug tester and confirmed that he had tested positive for something other than THC, which is more commonly associated with marijuana use. Nonetheless, his retest came up positive for “marijuana,” and the company fired him.

When the plaintiff later sued for disability discrimination, the defendant argued that it fired the plaintiff because it honestly believed that he had tested positive for marijuana. However, the Sixth Circuit disagreed because the plaintiff specifically told the defendant that his hemp use may have resulted in a false positive. Yet, rather than investigate that possibility — all the defendant had to do was email the drug tester to flag the issue — it retested the same sample.

Does this mean the defendant discriminated against the plaintiff based on his disability? Not necessarily. But, the defendant lost a valuable defense because it could not establish that it made a “reasonably informed and considered decision” to terminate the plaintiff’s employment.

“Doing What’s Right – Not Just What’s Legal”
Contact Information