You want a safe workplace and have adopted a Drug Free Workplace policy. You may even have government contracts that require you to drug test your employees. How does the brave new world of legalized marijuana, medical marijuana, and CBD products fit in? The answer, like many legal questions, depends. However, in Flannery v. Peco Foods, Inc., the 8th U.S. Circuit Court of Appeals upheld a grant of summary judgment in favor of the employer based on Arkansas’ at-will employment policy.
Kelly Flannery used CBD oil for back pain. When his workplace drug screen came back positive for THC, the active ingredient in marijuana, Peco Foods terminated him. Arkansas is an employment at-will state with a few public policy exceptions. Flannery filed a lawsuit attempting to fit within one of those exceptions, but the district court granted summary judgment in favor of the employer.
The 8th Circuit (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) upheld the district court’s order. In essence, the court held that Arkansas’ employment at-will doctrine allowed an employer to terminate an employee at any time “for good cause, no cause, or even a morally wrong cause.” Peco Foods’ termination of Flannery for failing the drug test, even if it was because he was using CBD oil, fit squarely within this doctrine.
The 8th Circuit’s decision is fairly narrow. Apparently, Flannery did not raise a timely claim under the Americans with Disabilities...
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