With the explosion of legal hemp products across the U.S., employers are increasingly faced with employees who claim that a positive test for marijuana resulted from use of legal CBD products. On Monday in Flannery v. Peco Foods Inc., the Eighth Circuit Court of Appeals affirmed summary judgment for an Arkansas employer sued by a former employee terminated following a positive test for THC, the active chemical in marijuana.
In his suit, the employee alleged that the test resulted from his use of a legal CBD oil following a workplace injury. He claimed that Arkansas law implied a covenant of good faith and fair dealing into the employment relationship, and that the employer had violated these obligations by rejecting his explanation of the reasons for the positive test, and the fact that the THC level indicated was below the typical threshold detection limit.
The Eighth Circuit rejected these arguments, noting that the employment at-will doctrine applied to the termination decision, and that the covenants cited by the plaintiff do not apply in the absence of a mutual employment contract. The court also denied the plaintiff’s attempt to assert public policy wrongful discharge and workers' compensation retaliation claims because they were not initially pled in his complaint.
Employers outside of Arkansas should exercise caution when applying this decision. The opinion does not include discussion of any state’s lawful products statute. North Carolina, South Carolina, and a number of states adopted laws intended to protect tobacco users from adverse action by their employers based on use of lawful products outside of work. In recent years, some terminated employees have attempted to leverage these laws to challenge adverse actions following use of legal hemp products. Also, a terminated employee could allege a public policy wrongful discharge claim, but identifying an established state policy protecting workers who test positive for THC would be an uphill climb. For now, at least, employees who use legal hemp products containing THC do so largely with the risk of adverse employment consequences.
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