In January of 2019, Cherie Lehenky was subject to a random drug test by her employer, Toshiba America Energy Systems Corporation. On the day following her test, Lehenky provided Toshiba with a letter from her doctor stating that she had been treated with cannabidiol (CBD) which "may have a low level of THC," the psychoactive substance in marijuana which can elicit a positive drug test result. The plaintiff had never previously reported her medical condition (an inflammatory autoimmune connective tissue disease) or her CBD use to Toshiba. The company maintains a drug and alcohol policy requiring employees to report the use of medications that could be deemed "illegal" prior to submitting to a drug test. Lehenky's drug test result was positive for marijuana and she was subsequently terminated per company policy.

Following her termination, Lehenky filed suit against Toshiba, claiming disability discrimination under the Americans with Disabilities Act and the Pennsylvania Human Relations Act ("PHRA"). Ultimately, the Pennsylvania federal court dismissed all claims for a number of reasons, including that Toshiba did not have prior knowledge of the employee's disability nor did the company regard the employee as an illegal drug user. Furthermore, the court contended that Toshiba's drug testing policy did not impose a disparate impact on qualified persons with disabilities nor did it constitute an impermissible medical inquiry.

It is important to note that CBD is not yet regulated by the U.S. Food and Drug Administration.

Employers are encouraged to review jurisdictional laws regarding CBD use and internal drug screening policies to ensure alignment and compliance.

Posted: March 8, 2022