A North Carolina federal court dismissed a former employee’s legal claims related to her use of CBD outside of work after she tested positive for marijuana and was fired by her employer.  Anderson v. Diamondback Inv. Grp., LLC, No. 1:21CV778, 2023 U.S. Dist. LEXIS 42239 (M.D.N.C. Mar. 14, 2023).    

The employer had a drug testing policy which required employees who received an offer of employment to undergo drug and alcohol testing.  At the beginning of her employment, the employee tested positive for marijuana and disclosed that she had a history of using CBD.  She was permitted to take a second drug test and tested positive for marijuana again.  Her employment then was terminated.  The employee asserted claims under the Americans with Disabilities Act (“ADA”) for wrongful discharge, failure to accommodate, and disability discrimination related to her alleged medical use of CBD.  She also alleged discrimination based on the use of lawful products during nonworking hours in violation of North Carolina’s lawful products law.

The employee claimed she took CBD products for medical reasons but she did not have a prescription or medical authorization for CBD use from a health care provider.  Rather, she provided a letter from a nurse stating that she used CBD for anxiety and muscle spasms.  The court therefore ruled that she failed to prove that she had a disability under the ADA.  Moreover, even if the employee could prove that she had a disability, she failed to prove she was wrongfully discharged.  The evidence did not show that the employee provided the employer with notice of any alleged disability—the employee’s verbal statements that she used CBD to treat her anxiety were not enough to show she had a disability. 

The court rejected the failure to accommodate claim for similar reasons, i.e., the employee did not prove that she was disabled or that she had conveyed any request for an accommodation to the employer.  

Lastly, the employee’s claim under North Carolina’s lawful products law also failed.  Although an employer cannot discriminate against an employee for use of lawful products during nonworking hours, the statute provides an exception by which it is not unlawful to restrict employees’ use of lawful products during nonworking hours if the restriction “relates to a bona fide occupational requirement and is reasonably related to the employment activities.” N.C. Gen. Stat. § 95-28.2(c)(1).  Here, the court determined the employer had drug testing requirements that were reasonably related to promoting workplace safety and productivity.  The court found no evidence to suggest the employer’s drug testing policy was enacted for an unlawful reason or purpose. 

Darling Gutierrez contributed to this article.