Courts across the country have consistently concluded that the Americans with Disabilities Act does not require an employer to accommodate an employee’s use of medical marijuana — even outside of work — to enable an employee with a disability to perform the essential functions of the job.
But, what about using cannabidiol (CBD) instead — like with a teensy bit of THC that’s not enough to get anyone high?
Oh, you read the title to this blog post, did you?
Sure enough, that’s what a Tennessee federal court concluded in this recent decision. And I feel for the plaintiff here, I do. You see, she told her manager that she suffered from bipolar and anxiety. So, the manager told the plaintiff that she used CBD to treat her anxiety, chronic fatigue syndrome, and fibromyalgia. Eventually, the plaintiff decided to take CBS capsules to treat her anxiety.
Now, it’s not as if the plaintiff was sandbagged here. First, the plaintiff did not have any medical statement recommending the use of CBD to treat her anxiety. Second, the plaintiff knew that the defendant drug tested. Third, the plaintiff discussed the risks with her manager, and the plaintiff thought she would be fine. Finally, when the plaintiff eventually (and inevitably) failed the drug test, the manager was not the one who decided to fire her. Instead, HR basically convinced the plaintiff to resign voluntarily.
Let’s skip the part of the court’s decision that gets into wrongful discharge and disability discrimination and focus on the employer’s duty to accommodate. The defendant argued that the plaintiff’s claim failed because she never requested a reasonable accommodation when she asked the defendant to change its drug-testing policy to excuse the use of CBD with legal amounts of THC.
Here’s why the court felt that this was not reasonable:
While [the plaintiff] makes the general assertion that modifying a workplace policy is a reasonable accommodation when necessitated by an individual’s disability-related limitations, absent undue hardship, she does not point to any evidence in the record to show that her requested accommodation was necessary to “address a key obstacle preventing [her] from performing a necessary function of [her job.]” This is fatal to her claim.
In plain English, the ADA does not require accommodating the use of THC, no matter how small.
Does that mean that the ADA prevents employers from accommodating employee use of CBD, or even a big fat spliff off the job to treat an underlying disability — as long as the employee reports to work not under the influence? Of course not.
(Do people still say spliff or, perhaps, doobie?)
And while as a nation we’re not quite so progressive as to sell pot brownies in the lunchroom vending machine, depending on where you operate, state law may require accommodating an employee’s off-the-clock marijuana use to treat an underlying disability.
Whatever your policy on medical (or recreational) THC/CBD might be, I suggest with peace and love (and not in any way providing specific legal advice) that you address it in a written policy in your employee handbook so that employees understand their rights and responsibilities.