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CBD & the ADA: Am I Protected?

Posted by Kathy Harrington-Sullivan | Oct 22, 2019 | 0 Comments

With the advent of the 2018 Farm Bill that made CBD with less than 0.3% THC legal, and with the burgeoning use of CBD to treat a variety of medical conditions ranging from slight to serious, employment lawyers are seeing an uptick in terminations related to false-positive drug tests for THC.als

CBD probably became most well-known when it was lauded for controlling a child's seizure disorder that traditional medicine failed to control. Although the FDA has yet to approve it wholesale, CBD is widely regarded as a go-to treatment for symptoms of many medical conditions, including seizures, autism, anxiety, panic disorder, sleep issues, arthritis, inflammation, and chronic pain, just to name a few. Why, then, are employees being terminated for using CBD, which is now legal and typically used to treat these legitimate medical conditions? The problem is two-fold.

First, most field tests, such as the broad-spectrum ones used by law enforcement and employers, do not yet not distinguish between CBD and THC. Testing positive for THC is usually more than enough reason for employers to terminate legally, but automatic termination for positive THC test where CBD alone is being used to treat a medical condition may be a violation of the Americans with Disabilities Act (ADA).

Second, some drug-testing companies may be to blame for CBD-related job loss. Rather than upgrading equipment and processes that would allow for a distinction between CBD and THC in testing, many drug-testing companies continue to rely on devices and techniques known to yield false positive results for THC when only CBD is present.

If you take CBD for a medical condition, you may want to talk with your employer and request a reasonable accommodation under the ADA. If you are terminated for requesting an accommodation for CBD use or if you can answer YES to ALL of the following questions related to workplace drug testing, please call us at 404-487-0922, we would like to speak with you about your situation:

  1. Do you have a medical condition?
  2. Do you use CBD to treat symptoms related to your medical condition?
  3. Were you drug tested at work?
  4. Did you make your employer aware of your legal CBD use prior to testing?
  5. Was your drug test was false-positive for THC?
  6. If not for the CBD false-positive, would you have passed a drug test for THC?
  7. Were you terminated because of your false-positive result?

About the Author

Kathy Harrington-Sullivan

Kathy Harrington Sullivan is a Partner at Barrett & Farahany who helps potential clients understand the law, clarify their rights, and determine which steps they can take to protect themselves and their jobs.


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