Sixth Circuit Rejects Employer's Honest Belief Defense Where It Did Not Investigate Until After Termination

Yesterday, the Sixth Circuit unanimously reversed an employer’s summary judgment on an Ohio disability discrimination claim and rejected its honest belief defense on the grounds that it did not make a reasonably informed and considered decision.  Fisher v. Airgas USA LLC, No. 23-3286 (6^th Cir. 1/31/24).  The plaintiff had been taking legal hemp to help with pain and nausea from his cancer treatment.  However, although he told his employer that this might have caused a false positive test for marijuana (and there was evidence that he tested positive for THCA and not TCH), it did not investigate or discuss this with the testing laboratory until after it fired him.  Because it did not investigate the matter or tell the lab about his hemp use until after his termination, it did not make a reasonably informed and considered decision, which is necessary to rely on the honest belief doctrine.   Moreover, because it did not even discuss the issue with the lab until after his termination, they could not rely on that conversation to support their honest belief defense.  It only matters what they knew before he was fired.

According to the court’s opinion, the plaintiff was diagnosed with liver cancer a month after he was hired.  After working successfully for about a year, he was granted a medical leave for surgery and treatment.  Upon returning to work, he experienced pain and extreme nausea and began taking small amounts of hemp, without informing his employer, whose policy did not ban its use.  He was then randomly selected for a drug test, which indicated that he tested positive for marijuana.   He requested a repeat test, explaining for the first time that his hemp may have caused a false positive.  The employer obtained a re-test of the same sample, but did not tell the lab about his use of hemp.  The employer also did not ask the lab if hemp would cause a false positive.  In the meantime, the plaintiff contacted the lab’s MRO, who said he had tested positive for THCA, not THC.  The employer fired him anyway.  It later contended that when it contacted the lab’s CMO (after the plaintiff’s discharge) that it was told that he tested positive for THC.  However, the CMO’s affidavit says otherwise -- that he only tested positive for THC.  Nonetheless, the employer refused to reinstate him.

The plaintiff filed suit for disability discrimination.  The trial court granted the employer’s summary judgment motion based on the honest belief rule, but the Court of Appeals reversed.

[The plaintiff] expressly raised with [the employer]—specifically for purposes of his retest— the question whether his hemp usage had caused his sample to test positive for marijuana. Yet [the employer] did nothing to investigate that possibility—even though doing so would have been as easy as sending an email to [the lab] flagging that possibility. [The employer] therefore has not established— as a matter of law, as necessary for summary judgment—that it made a “reasonably informed and considered decision.”

In addition, for purposes of the honest belief rule, the employer could not rely on alleged conversations with the lab -- disputing that hemp could have caused a positive THC test -- because those conversations were not held until after the plaintiff’s employment had been terminated.

[The employer] counters that [the lab’s] Chief Medical Officer . .. . told [it] that hemp could not have caused [the plaintiff’s] positive tests. But that confirmation came after [it] fired [him], not before. And the only facts that matter for purposes of the honest-belief rule are those that were before the employer “at the time” it fired its employee.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Enacts Medical Marijuana Statute

Earlier this month, Governor Kasich signed House Bill 523 authorizing a restrictive version of medical marijuana in Ohio. The statute becomes effective on September 8.   Medical pot cannot be smoked in Ohio even by prescription and will be regulated like other drugs. The statute also contains a specific provision – Ohio Revised Code § 3796.28 --  permitting employers to prohibit marijuana use by its employees, to deny accommodation of medical marijuana, and to contest unemployment compensation and workers compensation when the claimant-employee has been fired for using medical marijuana in violation of the employer’s policy or formal program.   Medical marijuana remains illegal under federal law.  That being said, there remains a risk that courts will eventually treat medical marijuana like any other legally prescribed (under state law) controlled substance and find that the ADA requires the reasonable accommodation of off-duty medical marijuana use even if the employer prohibits off duty illegal drug use.   In that event, an employer may need to show that the employee was impaired at work.

Sec. 3796.28. (A) Nothing in this chapter does any of the following:

(1) Requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;

(2) Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana;

(3) Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;

(4) Interferes with any federal restrictions on employment, including the regulations adopted by the United States department of transportation in Title 49 of the Code of Federal Regulations, as amended;

(5) Permits a person to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;

(6) Affects the authority of the administrator of workers’ compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program established in accordance with rules adopted by the administrator under Chapter 4123. Of the Revised Code.

(B) A person who is discharged from employment because of that person’s use of medical marijuana shall be considered to have been discharged for just cause for purposes of division (D) of section 4141.29 of the Revised Code if the person’s use of medical marijuana was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.

The ADA contains a specific section on the illegal use of drugs and alcohol at 42 U.S.C. § 12114.  A “qualified individual with a disability” does “not include any employee or applicant who is currently engaging in the illegal use of drugs. . . . “  Tests “to determine the illegal use of drugs shall not be considered a medical examination.”   However, “illegal use of drugs” is defined earlier at §12102(6)  to mean the use of drugs which are “unlawful under the Controlled Substances Act,” but “does not include the use of a drug taken under supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act or other provisions of Federal law.”  “Drug” means “a controlled substance as defined in schedules I through V of section 2020 of the Controlled Substances Act.”  While medical marijuana is not authorized by the CSA or other provisions of federal law, in Ohio and other states, it can now be taken under the supervision of a licensed health care professional as provided in the ADA.  Therefore, an argument could conceivably be adopted by a court in the future that medical marijuana does not constitute an illegal drug under the ADA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.