quick hit
The Fourth Circuit held that the former employee's own affidavit and accompanying nursing records conclusively established that she was in fact disabled or that her condition substantially inhibited her major life activities. The court inquired as to whether the company had shown that it was restricted to. 4th Circuit relies on Supreme Court precedent regarding disparate impact claims to conclude that facet-neutral, lawful, nondiscriminatory grounds for termination that disparately impact protected classes remain valid I attached it. The Fourth Circuit held that communication to the employer about the plaintiff's medical condition and the use of cannabis-derived products to alleviate its effects was insufficient to establish that an accommodation was requested.
Delta-9 Hemp Products ≠ Illegal Marijuana: What's the Difference?
A crash course in marijuana-based organic chemistry is needed to clarify the differences between illegal marijuana derivatives and legal cannabis-derived products.
Marijuana and hemp-derived products are derived from the same plant, the cannabis plant, designated Cannabis sativa in Linnaeus' botanical classification system. All cannabis plants contain cannabidiol and THC, with THC being the psychoactive component of marijuana.
The Agriculture Improvement Act of 2018 amended the Controlled Substances Act (CSA) to make certain hemp-derived products, such as CBD (similar to marijuana, manufactured using parts of the hemp plant and containing compounds such as THC) Excluded from regulation. Definition of illegal marijuana and illegal THC. According to the CSA, “hemp” is “the plant Cannabis sativa L. and its seeds and all derivatives, extracts, (and) parts of that plant, including cannabinoids, which have a delta-9 (THC) concentration Less than 0.3% on a weight basis.
In summary, under both state and federal law, the key difference that distinguishes illegal marijuana and THC from legal cannabis-derived products is the product's delta-9 THC concentration.
background
Diamondback is a “land acquisition company with offices in Guilford County, North Carolina.” Tonya Anderson was hired as a contract liaison. In this role, I was required to track the progress of commercial real estate contracts and perform title searches. As a condition of her employment, Anderson was required to submit a negative pre-employment urine test for drugs and alcohol. Shortly after starting work at Diamondback, Anderson's first test came back positive for marijuana.
Anderson explained that she took “a dropperful” of CBD oil before work in the morning, and “another (probably from a vaporizer with Delta 8 in it) at lunch.” Ms. Anderson testified that the cannabis-derived products never got her high or affected her work performance. After Anderson learned that he had tested positive for marijuana and was given a second chance to take a urine test, he sent an email to his boss and Diamondback's owner that read: It contained text.
This morning I received a phone call (from my boss) that caught me off guard. Because I don't take any drugs, recreational or prescription. However, I take CBD, Midol, Aleve-D, and Benadryl for health issues. These are the four items that were in the system during the initial testing, and these are the four items that are currently in the system.
Midol is for women's issues, Aleve-D and Benadryl are for sinusitis and allergies, and CBD is for everything else.
…
I can provide a service animal license for your dog and use CBD in place of prescription drugs that may treat one symptom but may cause further problems in the long run. You can ask your doctor to check the reason… (emphasis in original).
Anderson claimed that while she was at the drug testing facility for her second and third tests, she spoke to her supervisor and explained that she was using CBD to treat anxiety. Mr. Anderson also provided Mr. Diamondback with a nurse's note with the relevant passages:
I can confirm that (Mr. Anderson) is taking over-the-counter CBD products for anxiety and muscle spasms. Because of these products, it is common for THC to show up on drug urine tests. I assure this patient that he is only taking CBD, which is a natural product.
After Anderson was unable to provide a negative test result on his third attempt, Diamondback owners decided to terminate Anderson's employment and notified him that he would be fired “due to a positive drug test.” did.
Anderson filed suit in district court alleging (1) claims of wrongful discharge under the ADA, (2) failure to respond to claims under the ADA, and (3) claims of discrimination against lawful use of legal products. filed two allegations. Non-work time under North Carolina General Laws Section 95-28.2. JA10-11. Diamondback moved for summary judgment on all claims at the conclusion of discovery, and the district court granted the motion in its entirety. This appeal continued.
Anderson has stopped short of finding a disability.
The ADA offers three alternative definitions of disability. A physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being considered to have such an impairment. The ADA Amendments Act of 2008 (ADAAA) rejects the strict standards imposed by the Supreme Court and the U.S. Equal Employment Opportunity Commission (EEOC) on the definition of “disability,” and provides detailed, interpretive rules, and examples emphasizing disability. Includes clarification. Broad scope of law. The ADAAA specifically states that the ADAAA's “definition of disability…shall be construed to broadly cover individuals to the fullest extent permitted by the Code.”
Ms. Anderson presented her own personal evidence to support her claim that she suffers from both physical (muscle spasms) and mental (anxiety) disorders that substantially limit her life activities. He relied on affidavits and emails sent to his boss and Diamondback's owner (detailed above). And the nurse's notes. Diamondback cited a 2018 opinion in which he objected to Anderson's failure to provide “expert medical evidence” to substantiate his claims. This is a requirement when “the condition is unfamiliar to the jury and only an expert can diagnose it.” By the First Circuit Court of Appeals. Without resolving the issue of whether expert medical evidence was needed in this case, the Fourth Circuit ruled that Anderson's own affidavits, emails, and nursing records were insufficient to notify Diamondback of his disability. sufficient, and opined that these documents did not adequately explain how Anderson's disability affected him. Major life activities.
The Fourth Circuit first asked whether Anderson's emails to his boss and Diamondback's owner were sufficient evidence that he was disabled under the ADA. The appeals court reasoned that the emails “never mentioned her anxiety or muscle spasms or that she was using cannabis-derived products to treat these symptoms.” did. Additionally, Anderson's statement that he “uses CBD for everything else” was determined to be too vague to constitute a notice of impairment. Additionally, references to her service dog license and ability to “confirm with (her) doctor why (she) is using CBD in place of prescription drugs” suggest that Ms. Diamondback does not have a specific disability or I couldn't warn her enough about the possibility that she was. Currently suffering from a disability.
The Fourth Circuit quickly invalidated the nurse's notes, stating, “His (nurse's) notes…'confirmed that (Anderson) was taking CBD products…for anxiety and muscle spasms. 'I want her,' but she didn't say anything about how she spent her time.” The situation affects her major life activities. ”
Finally, Anderson's own affidavit states that her anxiety affects her “ability to interact with others, regulate emotions, leave the house, eat, and sleep,” and suffers from muscle aches and pains. They simply claim that joint pain limits their ability to “sit, stand, sit.” The Fourth Circuit held that “these bare claims lack important information and say little about how Anderson's condition limited her major life activities.” agreed with the court. Again, the Fourth Circuit did not resolve the issue of whether Anderson was required to provide medical evidence supporting her disability, but “…absent further stipulations, the statute It is impossible to recite it,” he emphasized. is sufficient to establish a substantive limit. ”
Diamondback's neutral, legal, non-discriminatory drug policy was effective.
Ms. Anderson argued that her positive drug test could not be presented as a legitimate, non-discriminatory reason for termination because the policy itself was discriminatory. In her view, the policy did not differentiate between illegal drug users and people who treat their disorders with treatments that involve illegal drugs or legal drugs that may register as illegal on a drug test.
Citing U.S. Supreme Court precedent, the Fourth Circuit held that “a facet-neutral, lawful, nondiscriminatory reason that differentially affects a protected class remains valid.” . In this vein, the Fourth Circuit held that “Diamondback is a drug that terminates individuals who took what was determined to be an illegal drug by uncontested drug test results to treat a disorder.'' We were able to implement testing policies freely.” This policy does not aim to intentionally exclude individuals from taking legally prescribed medications to treat a disorder. …(W)e cannot require Diamondback to establish a drug testing policy that accounts for positive results caused by, for example, self-prescribed substances of unknown origin that are registered as illegal controlled substances for drug testing. . ” (emphasis in original)
Anderson unsuccessfully requested accommodations
The Fourth Circuit held that Anderson never actually requested any accommodations from Diamondback. As outlined above, Anderson's emails and nurse notes state that Anderson uses CBD products for medical reasons and that use of such products could result in a positive result on a drug test. only was mentioned. Ms. Anderson never requested an accommodation to refrain from taking a drug test because of her medical condition. The Fourth Circuit presented the following facts on this issue.
The drug testing policy, which Mr. Anderson was aware of, applied to all new and prospective employees. Rather than seek a waiver from insurance (or any other relief), Anderson submits to a drug test before the first test is conducted or even after the first test yields a positive result. I chose that.
Ultimately, the Fourth Circuit affirmed the district court's order, thereby granting Diamondback's motion for summary judgment on all three claims.
Important points
Mr. Anderson provides a strict interpretation of what constitutes notice of disability to an employer. Despite Anderson's written and verbal statements to Diamondback about his medical conditions, including anxiety and muscle spasms, including a nurse's note stating that he was using CBD for these conditions, The Fourth Circuit deemed this information insufficient because they were “vague statements.” Similarly, Anderson's self-serving affidavit does not, by itself, establish disability because it does not explain in specific detail how Anderson's condition materially affected his major life activities. It wasn't enough to do that. Mr. Anderson argues that 4th Circuit employers defending ADA claims based on lack of knowledge about an employee's disability, the employee's failure to request an accommodation, or a neutral, lawful, nondiscriminatory This could set a favorable precedent for employers seeking to implement effective drug testing. policy.
Ogletree Deakins' Drug Testing Practice Group and Leave of Absence/Reasonable Accommodation Practice Group continue to monitor developments and provide updates on the Drug Testing, Leave of Absence, and State Trends blogs as additional information becomes available. Masu.
S. Michael Nail is an employee of Ogletree Deakins' Greenville office.
Hollis Barnett will graduate from the University of South Carolina School of Law in 2024 and is currently awaiting admission to the South Carolina Bar.
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