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Termination of Employee Who Failed to Disclose CBD Use is Not ADA Violation

During Cherie Lehenky’s 18-year employment with Toshiba Corporation, she was diagnosed with panniculitis, an inflammatory autoimmune connective tissue disease. In 2019, the company notified Lehenky of her selection for random workplace drug testing as part of its Drug-Free Workplace Policy. She tested and learned that a CBD product she used could result in a positive test. Lehenky said she began taking the medication to see if it would help with her pain and functioning. She emailed Toshiba to let them know about her over-the-counter CBD product and its possible impact on the test. She offered to provide any needed documentation regarding her use of the product. The company did not respond to her email. When her drug test came back positive, Toshiba terminated her employment.

Lehenky sued her former employer, alleging discrimination under the Americans with Disabilities Act (ADA). To prevail on her claim, Lehenky would need to show she was disabled within the meaning of the ADA, she was “qualified” to perform the essential functions of her position with or without accommodation, and the company terminated her because of her disability. A federal district court concluded Lehenky could not meet her burden. The court accepted that Lehenky did suffer from a disability within the meeting of the statute. However, she failed to show that she was “qualified,” and her employer discriminated against her. Lehenky asserted she “was qualified” and “faithfully performed her duties” without providing any factual support. More to the point, the court said the ADA does not protect individuals “currently engaging in the illegal use of drugs” when the employer acts based on that use. Finally, Toshiba was unaware of Lehenky’s medical condition and randomly selected her for a drug test under its policy. Toshiba’s policy required Lehenky to disclose her CBD use when she began it and warned that failure to follow the policy could result in termination. The court dismissed Lehenky’s complaint.