In our modern world of a booming CBD industry and an increasing number of states that have legalized marijuana, can you terminate an employee for a positive drug test for marijuana? What if the test shows marijuana metabolites but you find out later it was a positive for CBD oil (a legal substance)? Does federal law protect an employee in any way in this scenario? In Rocchio v. E&B Paving, LLC, a federal district court in Indiana looked at this issue under the Americans with Disabilities Act and found no federal legal protection for the employee’s use of CBD oil.
E&B prohibited the use of illegal drugs at their workplace and based the policy on safety concerns. It used a third party to administer random tests. E&B had a zero tolerance policy and immediately terminated employees who tested positive. One of the prohibited drugs for which E&B tested was marijuana.
Employee John Rocchio’s number came up, he took his drug test, and the test revealed marijuana metabolites in his system. The third-party testing administrator notified E&B that Rocchio tested positive for marijuana, and E&B terminated his employment. The employee who recommended the termination relied on the report of a positive drug test. A straightforward example of prohibited conduct and consequences, right? Not so fast, said Rocchio.
Rocchio said he did not use marijuana, and the positive test was because he used CBD...
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