Consider the following hypothetical: a veteran employee of a Wisconsin corporation with a spotless disciplinary record shows up to work, where he is required to take a random drug test. The test is pursuant to the corporation’s long-established drug use policy, which mandates immediate termination for employees who test positive for controlled substances without a valid prescription. The policy is applied evenly to all employees, and the tests are administered without bias or discrimination.

Although the employee states that they have never used illegal drugs, their drug test comes back positive for tetrahydrocannabinol (THC), the chemical component of marijuana that is primarily responsible for the “high” associated with consumption of the plant.

The employer, citing a violation of their drug use policy, terminates the employee. The employee immediately files a claim with the Wisconsin Department of Workforce Development’s Equal Rights Division (ERD), claiming wrongful termination.

As Wisconsin is an at-will employment state, the employee has apparently violated an evenly applied company policy, and THC is controlled substance at both the state and federal level, you might think that the ERD should dismiss the employee’s claim.

However, the actual outcome might not be so cut and dried.

Hemp-derived Products and the Wisconsin Fair Employment Act

Wisconsin’s Fair Employment Act (WFEA), Wis. Stat. section 111.31-111.395, prohibits employment discrimination based on a number of protected characteristics.

While the statute largely mirrors Title VII of the feder​al Civil Rights Act of 1964 42 U.S.C. § 2000d et. seq., the WFEA also provides additional protections not found in its federal counterpart. Notable here, Wisconsin law generally bars employment discrimination based on an employee’s use or nonuse of lawful products off the employer’s premises outside of working hours, subject to the exceptions outlined in Wis. Stat. section 111.35.

Following Congress’s passage of the 2018 Farm Bill and the Wisconsin Legislature’s passage of related measures, both federal and Wisconsin law exclude “hemp” from lists of controlled substances. Hemp is thusly defined as a cannabis sativa plant or byproduct which contains less than 0.3% delta-9-tetrahydrocannabinniol on a dry weight basis.¹ As defined, hemp and hemp-based products are lawful to possess and consume in Wisconsin, despite being derived from the same type of plant as illicit marijuana. Thanks to this carve-out, hemp-derived products are now widely available across Wisconsin in wellness shops, gas stations, and grocery stores.

Consumers have lawful access to products containing cannabidiol (CBD), a molecule found in both illicit marijuana and lawful hemp. While not all uses of CBD have been approved by federal regulators, CBD products are marketed as sleep aids, anti-anxiety medicines, and relief for aches, pains, and migraines.

Additionally, products containing THC, whether the unscheduled delta-8 THC variety or with concentrations of delta-9 THC that are below the 0.3 limit, are marketed as intoxicants with effects similar to illicit marijuana. These products are widely available in Wisconsin following the passage of the 2018 Farm Bill.

Legal Products May Trigger Positive Drug Test

Because they are produced with plant matter that may lawfully contain trace amounts of delta-9 THC, consumption of these products can trigger a positive marijuana drug test. Indeed, CBD products which are marketed as non-intoxicating and as having zero or negligible amounts of THC often warn consumers that consumption could trigger a positive drug test.

And, while advanced drug testing methods such as gas chromatography-mass spectrometry can detect with precision the concentrations of the various molecules found in the cannabis sativa plant present in a given biological sample, the typical drug tests widely used by employers cannot determine with any certainty whether a positive concentration of delta-9 THC is the result of illicit marijuana use or use a lawful hemp-derived product.

So, if the employee in the hypothetical scenario above is able to prove to the satisfaction of a factfinder that the presence of THC in their drug test was due to their use of a lawful hemp product such as a CBD gummy, and that they did not otherwise consume an unlawful product that might trigger a positive result, the employer’s termination of that employee may run afoul of the WFEA. Of course, this is only true if none of the special circumstances in Wis. Stat. section 111.35 would otherwise permit the termination of the employee for using that product.

If those special circumstances are not present, the employer in the above hypothetical scenario may subsequently be found to have discriminated against the employee based on the employee’s use of a lawful product, when termination was premised on a positive drug test for illicit marijuana.

Avoiding Pitfalls: Suggestions for Management

As noted above, drug testing technology is unable to discern whether the source of THC in a sample was from consumption of Farm Bill-compliant hemp products or use of illicit drugs.

Management attorneys should consider counseling their clients that adverse employment actions following a positive drug test for THC (without other evidence of illicit employee drug use) could expose them to liability under the WFEA.

Moreover, employers should understand the “exceptions and special cases” which might provide a defense to employer liability under the WFEA.² For example, it does not violate the WFEA to terminate an employee who consumed a lawful hemp product off the employer’s premises and outside of working hours if that product caused them to show up to work intoxicated.³

In addition, a Wisconsin employee who uses marijuana in another state that permits adult consumption of marijuana – such as Illinois – are not protected under the WFEA, as marijuana is still illegal federally and under Wisconsin law. Although no there is no case law directly on point at time of writing, this use would arguably run afoul of Wis. Stat. section 111.35(e), which does not offer protection where the use of a product conflicts with a federal or state regulation.

Thus, management should be clued in to the source of the employee’s THC consumption.

Avoiding Pitfalls: Suggestions for the Plaintiffs' Attorneys

For plaintiff's attorneys, pitfalls come primarily in the form of proof.

While complainants'​ or plaintiffs' attorneys who work in the employment field are accustomed to argumentation under the McDonnell Douglas burden shifting analysis, lawful product discrimination is generally a direct discrimination claim.

This is to say that the primary fight in a lawful products case is not likely to be whether the employer’s action was pretextual, but rather whether the employee belongs to the protected class in the first place (the protected class being someone who has used a lawful product off-site and outside of working hours).

One problem for plaintiffs is that, by the time their lawful products case is litigated, they may no longer have physical remnants of the product they consumed. In these cases, plaintiff’s attorneys should be prepared to elicit testimony from their clients about the nature of the product they consumed, where they purchased it, and when.

Absent receipts, product bags, or electronic bank statement showing a purchase, the factfinder may be left to rely on the plaintiff’s testimony alone. In these instances, employees subject to drug testing might consider informing their employer prior to a drug test that they have consumed lawful products that could trigger a positive response. Putting the employer on notice of a potential positive drug test based on the use of lawful products before the test may discourage adverse employment actions based solely on a positive drug test. Furthermore, such notice could help employees preserve evidence of lawful use prior to the adverse employment action, which would make proving their discrimination claim easier if the employer does terminate them.

In addition, both management and plaintiff’s attorneys should become familiar with the science of cannabis and drug testing. The alphabet soup of cannabinoids alone can confuse even the most thoughtful factfinder – thus, advocates are advised to learn and understand which constituent components of marijuana are scheduled and are unlawful, which are not scheduled and are thus presumptively lawful, and which exist in a gray area.

Future Developments

Hemp laws in the United States and Wisconsin might be changing soon. Some Congresspeople who supported the 2018 Farm Bill have expressed buyer’s remorse, citing intoxicating products put to market following passage of the law. State legislators in Wisconsin have also considered scaling back the availability of hemp-derived products. For now, though, these products remain lawfully on the market, and employment attorneys should plan accordingly.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹See Wis. Stat. § 94.55(1).

2Wis. Stat. § 111.35.

3Wis. Stat. § 111.35(2)(a).