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By: Curt Graham
As CBD products continue to gain popularity across the country, employers are likely to have questions regarding the scope of their drug testing policies. A recent decision from the United States District Court for the Western District of Kentucky addressed this issue in the context of a wrongful termination claim.
The plaintiff in Amox v. S. Ky. Rural Elec. Coop. Corp., No. 1:18-CV-00120-GNS, 2020 U.S. Dist. LEXIS 56367 (W.D. Ky. Mar. 31, 2020) was terminated after a drug test came back positive for Tetrahydrocannabinol (“THC”). The plaintiff alleged his test was positive only because he had used CBD oil to treat pain and inflammation and he filed a wrongful termination suit against his former employer. Relying on the “public policy” exception to Kentucky’s at-will employment doctrine, the employee claimed public policy in Kentucky establishes an affirmative right to use CBD oil outside of the workplace that cannot be infringed. The basis for his argument was that Kentucky’s legislature had declared hemp to be an “agricultural crop” and that certain CBD products had been removed from the list of controlled substances in Kentucky.
The Court rejected these arguments, finding that none of the cited statutes addressed an employee’s ability to use CBD oil outside of the workplace without consequences and that there was no indication that the Kentucky General Assembly intended to prevent an employer from terminating an employee for failing a drug test stemming from his use of CBD oil. Accordingly, the wrongful termination claims were dismissed on summary judgment. There do not appear to be any reported decisions from other jurisdictions addressing this novel issue, but similar challenges are likely to be asserted relating to the enforcement of workplace drug policies.
If you have questions or would like more information, please contact Curt Graham at [email protected].