Should Employers Treat Synthetic THC Like Medical Marijuana?
By: Ed Ergenzinger
Tags: Cbd, Employment, Marijuana, Cannabis, Disability

Cannabis | Cannabinoids | THC | Legal

Should Employers Treat Synthetic THC Like Medical Marijuana?

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Employers are required by the Americans with Disabilities Act (ADA) to provide reasonable accommodations to disabled employees or applicants for employment, so long as the accommodations do not cause an undue hardship. If that accommodation involves medical marijuana use, however, courts have not required an employer to provide such accommodations under the ADA because marijuana is still an illegal drug on the federal level.

But what about synthetic psychoactive cannabinoid use, particularly if such use is prescribed to treat symptoms of a disability?

Medical Use of Cannabinoids

The cannabis plant, Cannabis sativa L., contains over 100 different naturally occurring compounds called cannabinoids. Two of the most well-known cannabinoids are delta-9–tetrahydrocannabinol (THC) and cannabidiol (CBD). THC is psychoactive and is responsible for the “high” that users experience when ingesting cannabis. CBD is non-psychoactive.

To date, the U.S. Food and Drug Administration (FDA) has not approved cannabis for the treatment of any disease or condition. However, the FDA has approved several naturally-occurring and synthetic cannabinoids for a number of different uses:

Epidiolex is a purified form of CBD approved for the treatment of seizures associated with Lennox-Gastaut syndrome or Dravet syndrome in patients 2 years of age and older.

Marinol® and Syndros® are synthetic forms of THC (known as dronabinol) approved for the treatment of nausea associated with cancer chemotherapy and for the treatment of anorexia associated with weight loss in AIDS patients.

Cesamet™ is a synthetic compound similar to THC (known as nabilone) and is approved for the treatment of nausea associated with cancer chemotherapy.

Although the medical uses above are the only ones currently approved by the FDA, off-label uses have been promoted by medical professionals and lay persons for a range of indications, including the treatment of AIDS and cancer-related symptoms, migraines, anxiety disorders, and multiple sclerosis (MS).

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The ADA and CBD

The Federal Controlled Substances Act (CSA) lists THC and “marijuana (cannabis)” as Schedule I substances, a designation which means they are both considered controlled substances with no medicinal value and a high potential for abuse. This includes derivatives of marijuana, which in turn includes CBD derived from marijuana.

However, when derived from lawful materials such as hemp, CBD and other non-psychoactive cannabinoids are not controlled substances.

CBD is commonly used to treat many conditions recognized as disabilities under the ADA. These include autism, seizures, and post-traumatic stress disorder.

Although state-level laws differ in the legality of CBD, if CBD is legal for medical purposes in a given state and it is prescribed by a doctor, then the employee’s use is facially legal. An employer taking adverse action against a disabled employee who uses CBD may therefore risk ADA-based discrimination claims.

But how would employers even know that an employee is using CBD? CBD is not psychoactive, and presumably should not impair anyone’s ability to do their job safely or effectively. And most drug tests used by employers do not test for CBD.

Most drug tests do, however, test for THC metabolites, and CBD can include as much as 0.3% THC by weight. This can result in positive drug tests after a single use, and because THC metabolites can accumulate in a person’s system the likelihood of this occurring increases the longer someone uses CBD.

That is what happened in a recent federal court decision in Tennessee. An employee was forced to resign after an employer’s drug test indicated a positive result for marijuana. That result was due to the employee’s use of CBD capsules to treat her anxiety associated with bipolar disorder.

The employee did not have any medical statement recommending her use of CBD to treat her anxiety. However, her manager was aware of her condition and her CBD use. Unfortunately that information was not shared with the Human Resources department, and personnel from this department were responsible for convincing the employee to resign.

In this case, the court found that the employer did not violate their duty to provide a reasonable accommodation under the ADA because the employee did not provide any evidence showing that a change to the drug-testing policy to excuse the use of CBD with legal amounts of THC was necessary to “address a key obstacle preventing [her] from performing a necessary function of [her job.]”

That doesn’t mean that employers are immune from ADA claims based on CBD use. It just means that in order for employees to prevail with such claims they need to be careful to establish a medical need for a qualifying disability and tie their request for a reasonable accommodation to a key obstacle in the performance of their job.

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The ADA and Synthetic Psychoactive Cannabinoids

Another recent federal court case in Tennessee dealt with an ADA claim following termination of an employee after a positive drug test for THC. In this case, the positive drug test was due to the employee’s use of Marinol®, which was prescribed by his doctor to treat anxiety associated with his depression.

The court noted that while the Department of Health and Human Services recognizes that Marinol® can have psychoactive effects that can present a safety issue in the workplace, the FDA has approved its use for some conditions. The court also noted that, although the FDA has not approved Marinol® to treat anxiety, there is research that indicates that Marinol® may help individuals who struggle with anxiety.

Unfortunately for the employee, the court found that he had never requested an accommodation for his Marinol® use and dismissed his failure-to-accommodate claim on that basis.

Again, that doesn’t mean that an employer doesn’t have a duty to accommodate an employee’s use of synthetic THC for a legitimate medical use. It just means that employees need to be able to prove every element of their claim for a failure to accommodate under the ADA.

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What This Means for Employees

Employees using CBD or synthetic cannabinoids for medical purposes who are seeking to bring a failure to accommodate claim under the ADA need to be sure that they are able to prove every element of that claim. To prevail, they must show that:

They were disabled within the meaning of the ADA; They were otherwise qualified for their position, with or without reasonable accommodation; The employer knew or had reason to know about their disability; They requested an accommodation; and The employer failed to provide the necessary accommodation.

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What This Means for Employers

Just because the cases described above involved cases in which the employers prevailed, that doesn’t mean that an employer is immune from ADA claims based on CBD or synthetic cannabinoid use.

With respect to psychoactive synthetic cannabinoids, it is worth noting that many states have laws that may require certain employers to allow an employee with a disability to use even medical marijuana outside the workplace as long as the employee doesn’t report to work under the influence or otherwise create a direct threat to others.

So when it comes to accommodations for medical uses of CBD or synthetic cannabinoids for employees with disabilities, if the employee isn’t going to report to work high and doesn’t work in a safety-sensitive position, consider allowing it.