When can you rely on a positive drug test to terminate an employee? If the employee suggests a reason for a false positive, like hemp use, can you still side with the drug test? The Sixth Circuit’s decision in Fisher v. Airgas USA, LLC, et al. is instructive.

Blowing Smoke

In October 2019, Airgas hired Murray Fisher as an “operations technician.” A month later, doctors diagnosed him with liver cancer. In August 2020, doctors told Fisher that he needed surgery. Around that time, he requested accommodations for medical leave and for time off to attend doctors’ appointments. Airgas granted both requests.

Fisher had surgery and Airgas gave him eight weeks of medical leave. Fisher returned to work in October 2020. Due to ongoing pains, Fisher began taking a product called “Free Hemp” to offset symptoms.

In November 2020, Airgas selected Fisher for a random drug test. A contractor, HireRight, reported that Fisher’s sample was positive for “marijuana.” Fisher told Airgas he did not use marijuana and asked for a retest, explaining that his use of Free Hemp might have caused a false positive.

Airgas agreed to a retest, using the same sample as Fisher’s original test. Airgas, however, failed to tell HireRight that Fisher had been using hemp. Airgas also failed to ask HireRight whether using a legal hemp product could have caused a false-positive test for marijuana.

In the meantime, Fisher contacted HireRight about his positive drug test. HireRight’s medical review officer told Fisher that he had tested positive for tetrahydrocannabinolic acid (THCA). THCA is a different substance from delta-9 tetrahydrocannabinol (THC), which is more commonly associated with marijuana use.

Fisher’s retest was positive for “marijuana,” and Airgas fired him. Fisher sought reinstatement. He reiterated to Airgas his previous explanation for the positive tests and said that, in his view, HireRight had mislabeled the THCA in his sample as marijuana. Airgas’s vice president of Human Resources told Fisher that HireRight’s chief medical officer told her that Fisher’s sample contained “THC.” She added that Fisher’s use of a legal hemp product would not have caused Fisher’s positive tests. Airgas rejected Fisher’s explanation and refused to reinstate him.

In March 2021, Fisher sued Airgas in state court, claiming that Airgas had engaged in disability discrimination in violation of Ohio’s disability discrimination law. Essentially, Fisher claimed that Airgas terminated him for using hemp to address the pain related to his disability. Airgas removed the case to federal court and filed a motion for summary judgment. The district court granted summary judgment to Airgas on Fisher’s disability discrimination claim under the honest-belief rule—Airgas honestly believed that Fisher tested positive for marijuana.. Fisher appealed.

The Smoking Gun

Under the honest-belief rule, if an employer proves that it honestly believed in a nondiscriminatory reason for firing an employee, “the employee cannot establish that the reason is pretextual even if it is later shown to be mistaken or baseless.” The Sixth Circuit noted that 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. If an employer conducts no meaningful investigation, it cannot show the requisite honest belief.

The Sixth Circuit determined that Airgas could not use the honest-belief doctrine as it did not ask HireRight about Fisher’s explanation for his positive test result prior to terminating him. (The VP of HR’s conversation with HireRight was after the termination.) Instead, Airgas submitted the same sample from Fisher’s first test and did not notify HireRight that Fisher used a hemp product prior to the retest. Fisher actually raised the question to Airgas about whether hemp usage could cause a positive drug test. Airgas, however, never asked HireRight about this, even though investigating this question would be, as the Sixth Circuit noted, as simple as sending an email.

After the Sixth Circuit’s reversal, the parties settled the matter.

Heedful Advice Regarding the “Honest-Belief” Rule

The Sixth Circuit’s ruling made clear that an employer must conduct a thorough investigation into alleged misconduct before finalizing the decision to terminate. The employer need not show that it left no stone unturned, but it must nonetheless conduct a reasonable investigation. Apparently, that includes talking to a contractor, like HireRight, about potential reasons for a false positive.

In this case, Fisher expressly raised with Airgas the question of whether his hemp usage had caused a false positive for marijuana. Airgas did not investigate whether that was true. The Sixth Circuit found that this failure precluded Airgas from relying on the honest-belief doctrine.

Hemp and the “Honest-Belief” Rule

What does the Sixth Circuit’s decision teach us about hemp and the honest-belief rule?

• Think about collecting information on the front end. Employers could include a questionnaire that identifies hemp usage (kind of like prescription medications) that will be sent to the testing lab with the sample. If Fisher was able to attach a questionnaire with his sample that explained he was using a hemp product to manage his pain after a cancer-related surgery, Airgas would have had that information and the drug test result in hand when it terminated Fisher.
• If an employee suggests that a legal substance caused a false positive, investigate. Ask the testing facility if that could be the case. Document that discussion.

There is no way of knowing whether Airgas would have made the same decision if it had more information, or if Fisher would have still filed a lawsuit for disability discrimination. What we do know, though, is that Airgas would have had a much stronger argument to support its decision to terminate under the honest-belief rule. The 2018 Farm Bill legalized hemp. And today, at least 21% of Americans have used a hemp-derived product. This means that there are employees who use hemp. Employers should strive to avoid situations like Airgas’ by taking proactive steps to support termination decisions related to hemp usage.

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