When you work in the cannabis business, you get used to answering questions that don’t always make sense. One question we get most often is whether an employee can use a legal product that nonetheless may cause the employee to fail a drug test conducted by her employer.
We have a bit more clarity since the Fourth Circuit recently issued a decision that, in part, addressed “zero-tolerance” drug policies under North Carolina law. Our friends at Law360 have a nice summary of the facts, if you’re interested.
“Zero-tolerance” Drug Policies Are Permitted in North Carolina
Marijuana is, at least for the time being, a Schedule I controlled substance under federal law; however, the federal government and many states have created exceptions for certain products containing smaller amounts of tetrahydrocannabinol (THC). If a product contains less than 0.3% delta-9 THC on a dry weight basis, then the product is “hemp” under federal law and is outside the ambit of the federal Controlled Substances Act.
But what about employees at companies with “zero-tolerance” THC drug policies – in other words, a policy that subjects employees to discipline up to termination if THC is present in the tested sample? Afterall, many hemp and hemp-derived products legally contain at least some amount of THC that could be flagged in drug screens. So, what happens when an employer’s “zero-tolerance” drug policy collides with an employee’s use of legal products?
North Carolina law allows employers to restrict the lawful use of lawful products by its employees during non-working 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)). The Fourth Circuit dedicated a portion of its ruling to interpreting this exception as it relates to hemp-derived products.
The court held that a company’s drug screening policy fit the exception because the policy was implemented in good faith to provide a safe and productive workplace for its employees. Importantly, the court did not consider whether the policy advanced work-safety as to the hemp-using employee’s specific employment activities. Instead, the question was whether the drug screening policy promoted workplace safety for the company as a whole, and the court concluded that it did.
Takeaway
So, what is the takeaway here? Under the Fourth Circuit’s reading, state laws, such as North Carolina’s law, allow companies with “zero-tolerance” drug policies to fire employees for using hemp products that are otherwise legal to use outside of the workplace. But the drug policy must reflect a genuine effort to promote a legitimate concern for the company (i.e., workplace safety).
It is important to note that the Fourth Circuit’s decision was based on North Carolina state law, rather than some overarching law that applies everywhere. But this decision shows the Fourth Circuit’s willingness to uphold “zero-tolerance” drug policies under laws like North Carolina’s.
We will keep watching for further developments in this specific case and others like it around the country. In the meantime, query whether the Americans with Disabilities Act should have a role in cases where an employee is using hemp to treat a medical condition. Stay tuned.
