Worker Fired After 2 Positive Drug Tests: Was Termination OK?

Evolving cannabis legislation makes employee drug testing trickier than ever. But if an employee fails two drug tests in a row, it’s probably safe to move forward with termination, right?

That’s likely what company leaders at Airgas USA were thinking when they fired a worker who tested positive for marijuana – and then tested positive again when he was retested.

But after the former employee sued, the Sixth Circuit pointed out the company’s big mistake. Here’s what happened.

Employee Diagnosed With Cancer

In October 2019, Airgas hired Murray Fisher as an operations technician, a role that required him to:

• use power tools
• work with combustible gases, and
• drive a company vehicle.

A month later, Fisher was diagnosed with liver cancer. Even so, he continued to work for the next nine months and received positive performance reviews from his supervisor.

During the summer of 2020, Fisher learned that he needed surgery. He sought time off for medical leave, and Airgas granted his accommodation request. He took eight weeks of medical leave for the surgery and recovery.

He returned to work in October 2020, but his ongoing medical treatments were causing him pain and nausea. On a friend’s recommendation, he began taking a product called “Free Hemp” to manage his symptoms. He didn’t tell Airgas he was taking hemp, but the company had no policy prohibiting hemp use.

Company Conducts Random Drug Tests

The following month, Airgas selected Fisher for a random drug test. HireRight, the contractor that conducted the drug tests, reported Fisher’s sample was positive for marijuana.

Fisher denied using marijuana and asked Airgas for a retest, saying that his use of Free Hemp might’ve caused a false positive. Airgas agreed to a retest, albeit one using the same sample as Fisher’s first test.

But Airgas didn’t tell HireRight that Fisher had been using hemp. Nor did Airgas ask HireRight whether using a product like Free Hemp could’ve caused a false-positive test for marijuana.  

In the meantime, Fisher contacted HireRight about his drug test. Via email, HireRight’s medical review officer told Fisher that he’d tested positive for tetrahydrocannabinolic acid (THCA) – a different substance from delta-9 tetrahydrocannabinol (THC), which is more commonly associated with marijuana use.

Fired After 2 Positive Drug Tests

When Fisher’s second drug test also came back positive for marijuana, Airgas fired him.

Fisher then sought reinstatement, explaining that he believed HireRight mislabeled the THCA in his system as THC, in light of the email he’d received from the medical review officer. He said his drug tests had false-positive results.

But the VP of HR at Airgas wasn’t convinced that the results of Fisher’s drug tests were inaccurate. She said that she received an email from HireRight’s chief medical officer that indicated that Fisher’s use of a legal product like Free Hemp wouldn’t have caused a positive result. As a result, Airgas refused to reinstate Fisher.

Fisher sued, asserting a disability discrimination claim in violation of Ohio law. He alleged Airgas fired him for using hemp to manage pain associated with his disability – cancer.

The district court granted summary judgment to the employer under the honest-belief rule, as Airgas honestly believed Fisher tested positive for marijuana on two drug tests.

Fisher appealed to the Sixth Circuit.

What Is The Honest-Belief Rule?

Under the honest-belief rule, if an employer proves that it honestly believed in a legitimate, nondiscriminatory reason for firing an employee, then the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken.

To demonstrate an honest belief, 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.

Relevant here, if an employer fails to conduct a meaningful investigation, “it cannot show the requisite honest belief,” the Sixth Circuit explained.

Court Points Out Company’s Mistake

Here, Airgas didn’t conduct a meaningful investigation into Fisher’s explanation for the positive drug tests, the court said. Specifically, it didn’t ask HireRight whether the hemp could’ve caused positive results on Fisher’s drug tests. Instead, it merely “resubmitted the same sample for testing and fired Fisher when the retest came back positive,” the court noted.

Moreover, when Fisher expressly shared his concern about the hemp for the purposes of his retest, “Airgas did nothing to investigate that possibility—even though doing so would have been as easy as sending an email to HireRight flagging that possibility,” the Sixth Circuit pointed out.

As a result, Airgas did not prove that it made a “reasonably informed and considered decision,” the Sixth Circuit determined.

Airgas argued that it relied on the email from HireRight’s chief medical officer, which stated that hemp use could not have caused a positive result on drug tests.

The problem, the Sixth Circuit pointed out, was that Airgas received this email after it had already fired Fisher. The only facts that matter for purposes of the honest-belief rule are those that the employer knew at the time it fired the employee.

The Sixth Circuit reversed the district court’s ruling and remanded the case for further proceedings. Shortly after the ruling, the parties settled the case.

Key Takeaways For Employers

This case provides two valuable reminders for HR:

• Reasonable accommodations may apply to drug tests. When an employee discloses a medical condition and requests accommodation, such as medical leave, employers are obligated to engage in an interactive process to determine reasonable accommodations. Here, Airgas accommodated Fisher’s initial request for medical leave but did not consider his potential ongoing need for accommodations – such as leeway on random drug tests due to pain management strategies for his disability.
• Thoroughly investigate questionable results on drug tests. Conducting fair and meaningful investigations before making employment decisions, especially terminations, is always a best practice. In Fisher’s case, the court gave weight to the fact that Airgas failed to ask the drug testing company about the potential for hemp use to cause false positive results on drug tests. Not conducting a thorough investigation hurt the company in court.

Fisher v. Airgas USA, LLC & Airgas Inc., No. 23-3286, 2024 U.S. App. LEXIS 2258 (6th Cir. 1/31/24).