Honestly! Since When Can’t You Fire Somebody for Failing a Drug Test?

Issue 2 became law in Ohio on December 7, 2023, legalizing recreational marijuana use for adults. In presenting on this topic, we have proclaimed that Issue 2 will change very little for Ohio workplaces and employment practices. However, a recent case in the Sixth Circuit Court of Appeals has created a caveat to our bold proclamation.

Fisher v. Airgas USA, LLC: Case Background

In Fisher v. Airgas USA, LLC, No. 23-3286, 2024 WL 366246, at *1 (6th Cir. Jan. 31, 2024), the Sixth Circuit, which hears appeals of decisions originating in federal trial courts in Ohio, Michigan, Tennessee, and Kentucky, overturned the dismissal of a claim brought by an employee who was terminated for failing a drug test after testing positive for tetrahydrocannabinolic acid (THCA). Notably, THCA is a different substance from delta-9-tetrahydrocannabinol (THC), which is more commonly associated with marijuana use and the chemical that produces the “high.”

Issue 2 plainly states that an employer can discipline and even terminate an employee for failing a drug test. The facts underlying Fisher occurred before Issue 2 passed, so the decision did not interpret the new law. However, the case serves as a reminder that just because employers can do something doesn’t always mean they should – or at least they shouldn’t before first consulting with their employment counsel.

Now, turning to the facts underlying Fisher. A month after the plaintiff, Murray Fisher, was hired, he was diagnosed with liver cancer. Fisher continued to work for the next nine months and received positive performance reviews. In August 2020, Fisher was told that he needed surgery. Fisher had the surgery and his employer, Airgas, the defendant in the case, provided him eight weeks of medical leave.

Fisher returned to work in October 2020, but his medical treatments were causing him pain and nausea. A former coworker told Fisher that a product called “Free Hemp” might help with his symptoms. Fisher began using the product to help manage his pain. Fisher did not tell Airgas that he was taking hemp, and Airgas had no policy prohibiting its use.

Fisher was selected for a random drug test in November 2020, the results of which came back positive for “marijuana.” Fisher denied using marijuana and explained that his use of Free Hemp might have caused a false positive. Fisher asked for a retest, which Airgas agreed to. However, Airgas retested using Fisher’s original test sample and did not tell the contractor conducting Fisher’s retest that Fisher was consuming Free Hemp.

Airgas fired Fisher after his retest came back positive for “marijuana.” Fisher contacted the company that conducted his retest and the company’s medical review officer notified Fisher that he tested positive for THCA. Fisher sought reinstatement and reiterated to Airgas that his use of Free Hemp may have caused a positive test result. Fisher also explained to Airgas that the testing contractor mislabeled the THCA in his sample as “marijuana.” Airgas incorrectly informed Fisher that his sample contained “THC” and that Fisher’s use of a legal hemp product would not have caused a positive test. Contrary to Airgas’s assertions, the testing company’s chief medical review officer provided an affidavit explaining that Fisher tested positive for THCA, not THC. Ultimately, Airgas rejected Fisher’s explanation and refused to reinstate him.

The District Court Dismisses Claim Based on Honest Belief Rule

Following his termination, Fisher sued Airgas in state court, claiming that Airgas engaged in disability discrimination in violation of Ohio Revised Code § 4112.02. Airgas removed the case to federal court and filed a motion for summary judgment. The district court granted summary judgment to Airgas on Fisher’s disability discrimination claim, holding that Airgas’s stated reason for terminating Fisher was not pretextual. Fisher appealed the district court’s decision granting summary judgment to the Sixth Circuit.

The district court granted summary judgment to Airgas based on the “honest belief” rule. Under that rule, if an employer proves that it honestly believed in a nondiscriminatory reason for firing an employee, “the employee cannot establish that the reason is pretextual even if it is later shown to be mistaken or baseless.” Dunn v. GOJO Indus., 96 N.E.3d 870, 876 (Ohio Ct. App. 2017) (quotation omitted).

To demonstrate an honest belief, the 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. Id. The employer need not show that it left “no stone unturned.” Id. At 877 (quotation omitted). However, if the employer conducts no meaningful investigation, it cannot show the requisite “honest belief.” Cavins v. S & B Health Care, Inc., 39 N.E.3d 1287, 1311 (Ohio Ct. App. 2015).

The Sixth Circuit Holds no Honest Belief Without a Reasonable Investigation

In examining the reasonableness of Airgas’s investigation, the Sixth Circuit found that Airgas never informed the testing contractor that Fisher was taking Free Hemp. Nor did Airgas ask the contractor whether the legal hemp product could have caused Fisher’s positive test. The court also found that Airgas did not investigate the possibility of a false positive after Fisher raised concerns about his hemp usage. The court concluded that Airgas failed to demonstrate that it made a “reasonably informed and considered decision.” Dunn, 96 N.E.3d at 876; see also Cavins, 39 N.E.3d at 1311. As a result, Airgas could not seek the protection of the honest belief rule.

Implications for Employers: Conducting Reasonable Investigations

Employers must have a reasonable basis for believing an employee has used marijuana. If an employer suspects that an employee is under the influence of marijuana, the employer should investigate its suspicions rather than jump straight to termination. An investigation does not have to be perfect and does not have to turn over every stone, but it must be reasonable. Dunn, 96 N.E.3d at 877.

Employers may move forward with termination if their investigation provides support for that conclusion and if the employer has treated similarly situated employees the same way. Shoddy investigations and decisions made in haste can lead to expensive and protracted litigation. When an employer suspects a violation of its policies, it’s a good idea to stop, take a breath, and make sure there is support for the honest belief that the employee did something wrong. And when in doubt, it never hurts to consult one’s employment counsel before taking any action.

Grace A. Kuntz, Frost Brown Todd LLP. Grace is an associate with the law firm Frost Brown Todd in its Labor and Employment Practice Group. Her practice includes defending clients in litigation arising from claims of various forms of workplace discrimination. Grace earned her J.D. from the Northern Kentucky University Chase College of Law, where she graduated summa cum laude.

Richard L. Moore, Frost Brown Todd LLP. Rich is a partner with the law firm Frost Brown Todd in its Labor and Employment Practice Group. A trial lawyer, Rich has defended clients in both state and federal courts against claims of various forms of workplace discrimination. Rich is a frequent lecturer and author on topics related to employment law. Rich is a graduate of the University of Cincinnati College of Law, where he served on the Law Review.

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