Fourth Circuit Issues Opinion Regarding Hemp-Derived (Delta-9) Products in Case Involving ADA Claims

Quick Hits

• The Fourth Circuit questioned whether a former employee’s own affidavit and accompanying nurse note conclusively established that she was, in fact, disabled, or illustrated how her condition substantially limited a major life activity.
• In reliance on Supreme Court precedent concerning disparate impact claims, the Fourth Circuit concluded that a facially neutral, legitimate, nondiscriminatory reason for termination of employment that affects protected classes differently is nevertheless valid.
• The Fourth Circuit held that the plaintiff’s communication to her employer concerning her medical conditions and use of hemp-derived products to alleviate the effects of such conditions was inadequate to establish that an accommodation had been requested.

Delta-9 Hemp Products ≠ Illegal Marijuana: What Are the Differences?

To help clear the smoke of the differences between unlawful marijuana derivatives and lawful hemp-derived products, a short crash course in marijuana-based organic chemistry is called for.

Marijuana and hemp-derived products originate from the same plant—the cannabis plant and designated Cannabis sativa in the Linnaean system of botanical classification. All cannabis plants contain cannabidiol and THC, with THC being the psychoactive ingredient in marijuana.

The Agriculture Improvement Act of 2018 amended the Controlled Substance Act (CSA) to exclude from its reach certain hemp-derived products like CBD—which are, like marijuana, produced using parts of the cannabis plant and so contain chemical compounds like THC—from the definitions of illegal marijuana and illegal THC. Pursuant to the CSA, “hemp” is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, [and] cannabinoids … with a delta-9 [THC] concentration of not more than 0.3 percent on a dry weight basis.”

In summary, the critical distinction that separates illegal marijuana and THC from legal hemp-derived products under both state and federal law is a 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, a position that required her to track the progress of commercial real estate contracts and conduct title research. As a condition of her employment, Anderson was required to test negative for drugs and alcohol on her pre-employment urinalysis test. Shortly after beginning work for Diamondback, Anderson’s first test came back positive for marijuana.

Anderson explained that she consumed “[a] dropper full” of CBD oil in the morning before work and “a draw [of her vaporizer, likely containing Delta-8] at lunch time.” Anderson attested that the hemp-derived products never made her high or affected her work performance. Upon learning that she had tested positive for marijuana, and after being given a second chance to submit to a urinalysis test, Anderson emailed her supervisor and Diamondback owners, which contained the following language:

I was caught off guard this morning by [my supervisor’s] call because I do not do drugs—recreational or prescription. However, I do take CBD, Midol, Aleve-D and Benadryl for health issues. Those are the four items I had in my system during the first test, and these are the four items I have in my system now.

Midol is for female issues, Aleve-D and Benadryl are for sinus and allergies, and the CBD is for everything else …

…

I can supply you with my dog’s service animal license and I can get my doctor to verify the reason why I use CBD instead of prescription medication that may treat one symptom but cause more problems in the long run … (Emphasis in the original.)

Anderson claimed that she spoke with her supervisor while at the drug testing facility for her second and third test, explaining to him that she used CBD to treat her anxiety. Anderson also provided Diamondback with a nurse’s note, which read in pertinent part:

I can verify that [Anderson] is taking over the counter CBD products for anxiety and muscle spasm[s]. It is common for THC to show up in a drug urine screen because of these products. I can vouch for this patient that she is only on the natural product of CBD.

After Anderson failed to provide a negative test result on her third attempt, Diamondback’s owners decided to terminate Anderson’s employment, informing her that she was being dismissed “[b]ecause of the positive drug test[s].”

Anderson filed suit in the district court raising three claims: (1) a wrongful discharge claim under the ADA, (2) a failure to accommodate claim under the ADA, and (3) a claim for discrimination for the lawful use of lawful products during nonworking hours under North Carolina General Statute Section 95-28.2. J.A. 10-11. Diamondback moved for summary judgment on all claims at the end of discovery, and the district court granted the motion in its entirety. This appeal followed.

Anderson Falls Short of Establishing 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 regarded as having such an impairment.” The ADA Amendments Act of 2008 (ADAAA) rejected the strict standards imposed on the definition of “disability” by the Supreme Court and the U.S. Equal Employment Opportunity Commission (EEOC), and included clarifying details, rules of construction, and examples that underscore the broad applicability of the statute. The ADAAA specifically states that “the definition of disability … shall be construed in favor of broad coverage of individuals …, to the maximum extent permitted by the terms” of the ADAAA.

To support her claim that she suffered from both physical (muscle spasms) and mental (anxiety) impairments that substantially limit her life activities, Anderson relied on her own self-supporting affidavit, her email to her supervisor and Diamondback owners (detailed above), and the nurse’s note. Diamondback objected on the ground that Anderson failed to provide “expert medical evidence” to substantiate her claims, which is a requirement when “a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition,” citing a 2018 opinion issued by the First Circuit Court of Appeals. Without resolving the issue of whether expert medical evidence was required in this case, the Fourth Circuit opined that Anderson’s own affidavit, email, and nurse note were inadequate in providing notice of a disability to Diamondback, nor did these documents adequately explain how Anderson’s disability affected a major life activity.

The Fourth Circuit first questioned whether Anderson’s email to her supervisor and Diamondback owners sufficiently established that Anderson was a disabled individual under the ADA. The appellate court reasoned that the email “never once mentions her anxiety or muscle spasms, or that she was using hemp-derived products to treat these conditions.” Additionally, Anderson’s statement that she used “CBD for everything else” was determined to be far too vague to provide notice of a disability. Moreover, the mention of her service dog license and ability to “get [her] doctor to verify the reason why [she] uses CBD instead of prescription medicine” failed to sufficiently alert Diamondback to a specific impairment, or to the possibility that she was presently suffering from an impairment.

The Fourth Circuit quickly invalidated the nurse note, stating, “[T]he [nurse] note …, offered to ‘verify that [Anderson] is taking … CBD products for anxiety and muscle spasm[s],’ says nothing about how her conditions affect her major life activities.”

Lastly, Anderson’s own affidavit briefly asserted that her anxiety affects her “‘ability to interact with others,’ regulate her emotions, leave her house, eat, and sleep, and that her muscle and joint pain limits her ability to ‘sit, stand, walk, and manipulate objects with [her] hands.’” The Fourth Circuit agreed with the district court that “these bare assertions lack essential information—they don’t tell us much of anything about how Anderson’s conditions limited her major life activities.” Again, while the Fourth Circuit did not resolve the issue of whether Anderson was required to offer medical evidence to support her disability, the Fourth Circuit did reinforce that “… it can’t be the case that a recitation of the statute, without more, is enough to establish a substantial limitation.”

Diamondback’s Neutral, Legitimate, Nondiscriminatory Drug Policy Was Valid

Anderson contended that her positive drug tests could not be offered as a legitimate, nondiscriminatory reason for her employment termination because the policy itself was discriminatory. In her view, the policy didn’t distinguish between illegal drug users and people who treat their disabilities with remedies that contain either illegal substances or legal substances that may register on a drug test as illegal.

The Fourth Circuit, citing Supreme Court of the United States precedent, determined that “a facially neutral legitimate, nondiscriminatory reason that affects protected classes differently is nevertheless a valid one.” In this vein, the Fourth Circuit stated, “Diamondback was free to implement a drug testing policy that results in the termination of an individual taking what the unchallenged drug test results showed to be an illegal drug—marijuana—to treat a disability, if that policy doesn’t have, as a goal, the intentional exclusion of any individual taking a lawfully prescribed drug to treat a disability. … [W]e can’t for instance, require that Diamondback institute a drug testing policy that accounts for positive results caused by self-prescribed substances of unknown origin that register on a drug test as an illegal controlled substance.” (Emphasis in the original.)

Anderson Failed to Request an Accommodation

The Fourth Circuit held that Anderson never actually requested an accommodation from Diamondback. As outlined above, Anderson’s email and nurse note simply stated that Anderson uses CBD products for medical reasons and that the use of such products could result in a positive drug test. At no time did Anderson request an accommodation to refrain from taking a drug test in light of her medical condition. The Fourth Circuit presented the following facts on this issue:

The drug testing policy—of which Anderson was aware—applied to all incoming and prospective employees. Rather than seeking an exemption from the policy (or any other relief) before the first test was administered, or even after the first test returned a positive result, Anderson chose to submit to the drug tests.

Ultimately, the Fourth Circuit affirmed the district court’s order, thereby granting Diamondback’s motion for summary judgment on all three claims.

Key Takeaways

Anderson provides a strict interpretation of what constitutes notice of a disability to an employer. Despite Anderson’s providing Diamondback with written and oral communication of her medical conditions—anxiety and muscle spasms—including a nurse note stating that she used CBD for these conditions, the Fourth Circuit deemed this information as insufficient because they were “vague statements.” Similarly, Anderson’s self-serving affidavit, by itself, was insufficient to establish a disability because it did not explain in specific detail how Anderson’s condition substantially affected a major life activity. Anderson may provide favorable precedent for employers located in the Fourth Circuit that are defending an ADA claim based on a lack of knowledge of an employee’s disability, failure of an employee to request an accommodation, or employers seeking to enforce a neutral, legitimate nondiscriminatory drug testing policy.

Ogletree Deakins’ Drug Testing Practice Group and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Drug Testing, Leaves of Absence, and State Developments blogs as additional information becomes available.

S. Michael Nail is an associate in Ogletree Deakins’ Greenville office.

Hollis Burnett is a 2024 graduate of the University of South Carolina School of Law and is currently awaiting admission to the State Bar of South Carolina.

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