Legal hemp products may contain traces of Delta-9 THC. Users of these products, including many if not most CBD products, should be aware that they may test positive for THC on a drug test. They may even be disciplined or fired. This may be true despite North Carolina's "legal use of legal substances" law, which was passed in the 90's to accommodate tobacco users who were being subject to employment discrimination based on that use. 

The legal status of these "hemp" products, many of which are intoxicating, has been a gray area since the passage of the Farm Bill in 2018. Products such as THC-A, Delta-8, THC-O and countless others are prolifically marketed as legal alternatives to "marijuana" and are sold in retail storefronts throughout the state. Recently, the 4th Circuit Court of Appeals issued a ruling in a case where a woman claimed to have  only used legal hemp products but was fired for failing a drug test.

CBD Users can be Fired for Failed Drug Tests

The Fourth Circuit's decision in Anderson v. Diamondback Investment Group, LLC clarified several issues regarding employee drug policies, the Americans with Disabilities Act (ADA), and the treatment of hemp-derived CBD products. Tonya Anderson was terminated by Diamondback after failing two drug tests. Anderson argued her positive test results were due to her lawful CBD use for anxiety and that her termination violated the ADA and North Carolina's statute on lawful product use outside work. She claimed that CBD, which can legally contain trace amounts of THC, should not lead to adverse employment actions if used as a treatment. The ADA requires that an employer allow "reasonable accommodations" for a disabled employee upon request, so long as the requested accommodation does not cause "undue hardship" and the employee is able to perform the job "with or without" the accommodation. 

The court upheld the district court's dismissal of her claims, finding that Anderson did not adequately prove her disability or disclose it to her employer. The ADA requires individuals to establish that a condition substantially limits one or more major life activities, which Anderson could not substantiate. The Fourth Circuit noted her evidence, including a nurse's note and self-reporting, lacked the necessary detail to demonstrate that her anxiety and muscle spasms significantly impacted her daily life. Consequently, her inability to provide expert medical evidence to substantiate her claim weakened her case.

ADA Claims Need to be Pursued Carefully

The court also dismissed her claim that the positive drug test was an impermissible medical examination under the ADA. The Fourth Circuit reaffirmed that employers are not obligated to distinguish between positive tests resulting from legal versus illegal substances if THC is present above legal thresholds. This ruling underscores the Fourth Circuit's deference to employer policies that prohibit THC, regardless of an employee's intentions or legal product use.

This decision highlights the challenges employees face when using CBD products in states like North Carolina, where CBD is legal, but the law does not protect employees from drug test consequences resulting from trace THC levels. The Fourth Circuit suggested that North Carolina's lawful products statute could provide a potential basis for claims if more comprehensive evidence were presented in future cases. Employers, however, should note this ruling as a reaffirmation of their ability to maintain strict drug policies without accommodating CBD-related THC traces, even in states where hemp-derived products are legally permissible.

For employers, the decision emphasizes the importance of clear communication regarding drug testing policies, especially as CBD use grows. For employees, it underlines the need for thorough documentation and medical evidence when seeking ADA protection related to CBD use. This case could prompt North Carolina courts to further explore the intersection of state and federal law concerning CBD and employment protections.

Users of hemp products need to be aware that they may fail a drug test, even if the products that they use contain only trace, legal amounts of Delta-9 THC. Employers in North Carolina should probably have CBD-related policies. My reading of the Anderson case is that she may have prevailed if she had better evidence.Some of the problems with her case include, in addition to her scant evidence of actual disability, her testimony of using intoxicating Delta-8 while at work. This can cause a legitimate safety issue and would probably justify termination in most cases. 

Give me a call if you want to discuss your CBD/Hemp related employment case. I am generally pretty careful about what employment cases I will accept, but I have experience and knowledge in this area and it is worth a conversation to see if more formal consultation or representation may be warranted.