When can you rely on a positive drug test to terminate an employee? If the employee suggests a reason for a false positive, like hemp use, can you still side with the drug test? A JDSUPRA article about The Sixth Circuit’s decision in Fisher v. Airgas USA, LLC, et al. is instructive.
This is a summary of the article by JDSUPRA. We encourage you to read the article in its entirety. We have made some comments in this blog post of the article. This article highlights the importance of communication with the drug test provider.
In October 2019, Airgas hired Murray Fisher as an “operations technician.” A month later, doctors diagnosed him with liver cancer. .
Fisher had surgery and Airgas gave him eight weeks of medical leave. Fisher returned to work in October 2020. Due to ongoing pains, Fisher began taking a product called “Free Hemp” to offset symptoms.
In November 2020, Airgas selected Fisher for a random drug test. Airgas’ drug test provider reported that Fisher’s sample was positive for “marijuana.” Fisher told Airgas he did not use marijuana and asked for a retest, explaining that his use of Free Hemp might have caused a false positive. [R&A comment – We have a blog post here that has information about hemp product.]
Airgas agreed to a retest, using the same sample as Fisher’s original test. [R&A comment – When an employee requests a retest, the original specimen that resulted in the positive report MUST be used. Never just have an employee provide a new specimen. Also, a specimen retest can be $150 or higher. The lab that produced the original positive report is not allowed to retest the specimen. Rather, the specimen must be sent to a different lab. This requires complex chain of custody procedures thus resulting in the higher fee.]
Airgas failed to tell the drug test provider medical review officer that Fisher had been using hemp. Airgas also failed to ask the drug test provider whether using a legal hemp product could have caused a false-positive test for marijuana. [R&A comment – It is crucial for an employer to communicate with the drug test provider
Fisher contacted the medical review officer and was told that he had tested positive for tetrahydrocannabinol acid (THCA). THCA is a different substance from delta-9 tetrahydrocannabinol (THC), which is more commonly associated with marijuana use.
Fisher’s retest was positive for “marijuana,” and Airgas fired him. Fisher sought reinstatement. He reiterated to Airgas his previous explanation for the positive tests and said that, in his view, the drug test provider had mislabeled the THCA in his sample as marijuana. Airgas’s vice president of Human Resources told Fisher that the drug test provider’s chief medical officer told her that Fisher’s sample contained “THC.” She added that Fisher’s use of a legal hemp product would not have caused Fisher’s positive tests. Airgas rejected Fisher’s explanation and refused to reinstate him.
Essentially, Fisher claimed that Airgas terminated him for using hemp to address the pain related to his disability. Airgas removed the case to federal court and filed a motion for summary judgment. The district court granted summary judgment to Airgas on Fisher’s disability discrimination claim under the honest-belief rule—Airgas honestly believed that Fisher tested positive for marijuana. Fisher appealed.
Under the honest-belief rule, if an employer proves that it honestly believed in a nondiscriminatory reason for firing an employee, “the employee cannot establish that the reason is pretextual even if it is later shown to be mistaken or baseless.” The Sixth Circuit noted that an employer must provide evidence that it made a “reasonably informed and considered decision” based on reasonable reliance on “particularized facts that were before it” when it fired the employee. If an employer conducts no meaningful investigation, it cannot show the requisite honest belief.
The Sixth Circuit determined that Airgas could not use the honest-belief doctrine as it did not ask the drug test provider about Fisher’s explanation for his positive test result prior to terminating him. Instead, Fisher raised the question to Airgas about whether hemp usage could cause a positive drug test. Airgas, however, never asked the drug test provider about this, even though investigating this question would be, as the Sixth Circuit noted, as simple as sending an email.
After the Sixth Circuit’s reversal, the parties settled the matter.
Heedful Advice Regarding the “Honest-Belief” Rule
The Sixth Circuit’s ruling made clear that an employer must conduct a thorough investigation into alleged misconduct before finalizing the decision to terminate.
In this case, Fisher expressly raised with Airgas the question of whether his hemp usage had caused a false positive for marijuana. Airgas did not investigate whether that was true. The Sixth Circuit found that this failure precluded Airgas from relying on the honest-belief doctrine.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at randisiandassociates.com
