Excerpted from an HR Morning Blog by Carol Warner
Evolving cannabis legislation makes employee drug testing trickier than ever. But if an employee fails two drug tests in a row, it’s probably safe to move forward with termination, right?
That’s likely what company leaders at Airgas USA were thinking when they fired a worker who tested positive for marijuana – and then tested positive again when he was retested.
Employee Diagnosed with Cancer
In October 2019, Airgas hired a man as an operations technician, a role that required him to:
- use power tools
- work with combustible gases, and
- drive a company vehicle.
A month later, the man was diagnosed with cancer. He continued to work for the next nine months and received positive performance reviews.
His ongoing medical treatments were causing him pain and nausea. On a friend’s recommendation, he began taking a product called “Free Hemp” to manage his symptoms.
Company Conducts Random Drug Tests
The following month, Airgas selected the man for a random drug test. The contractor that conducted the tests reported his sample was positive for marijuana.
The employee denied using marijuana and asked Airgas for a retest, saying that his use of Free Hemp might’ve caused a false positive. Airgas agreed, albeit one using the same sample as his first test.
Airgas did not tell the contractor the man had been using hemp. Nor did they ask whether using a product like Free Hemp could’ve caused a false-positive test.
Fired After 2 Positive Drug Tests
When his second drug test also came back positive for marijuana, Airgas fired him. The man sought reinstatement, explaining he believed THCA in his system was mislabeled as THC. He said his drug tests had false-positive results.
But Airgas wasn’t convinced the results of the were inaccurate, having received an email from the contractor indicating the man’s use of a legal product like Free Hemp wouldn’t cause a positive result.
The man sued, stating Airgas fired him for using hemp to manage pain associated with his disability – cancer. The district court granted summary judgment to the employer under the honest-belief rule.
What is the Honest-Belief Rule?
Under the honest-belief rule, if an employer proves that it honestly believed in a legitimate, nondiscriminatory reason for firing an employee, then the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken.
To demonstrate an honest belief, an employer must provide evidence that it made a “reasonably informed and considered decision” based on reasonable reliance on “particularized facts that were before it” when it fired the employee.
Sixth Circuit Points Out Company’s Mistake
Here, Airgas didn’t conduct a meaningful investigation into the man’s explanation for the positive drug tests. Specifically, it didn’t ask whether the hemp could’ve caused positive results on his drug tests. Instead, it merely “resubmitted the same sample for testing.”
Moreover, when the man expressly shared his concern about the hemp for the purposes of his retest, “Airgas did nothing to investigate that possibility—even though doing so would have been as easy as sending an email.”
Airgas argued that it relied on the email from the contractor, which stated that hemp use could not have caused a positive result.
The problem, the Sixth Circuit pointed out, was that Airgas received this email after it had fired the employee. The Sixth Circuit reversed the district court’s ruling and remanded the case for further proceedings.
Takeaways
This case provides two valuable reminders for HR:
- Reasonable accommodations may apply to drug tests. When an employee discloses a medical condition and requests accommodation, employers are obligated to engage in an interactive process to determine reasonable accommodations. Here, Airgas accommodated the man’s initial request but did not consider his potential ongoing need for leeway on random drug tests.
- Thoroughly investigate questionable results on drug tests. Conducting fair and meaningful investigations before making employment decisions, especially terminations, is always a best practice. In this case, the court gave weight to the fact that Airgas failed to ask the drug test company about the potential for hemp use to cause false positive results. Not conducting a thorough investigation hurt the company in court.
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