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 (6th 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.
