On January 31, the Sixth Circuit published a cautionary tale regarding the “reasonable belief” doctrine involving an employer that fired a disabled employee for a positive drug test for “marijuana.”
Airgas USA Sued for Disability Discrimination Over Employee’s Hemp Use
In Fisher v. Airgas USA, LLC, Fisher was an operation technician who used power tools, worked with combustible gases, and drove a company vehicle. Fisher was diagnosed with liver cancer, and when he required surgery, the company gave him eight weeks of leave. When Fisher returned from leave, he was experiencing significant pain as a result of ongoing treatment, and he began to use “Free Hemp,” which was not prohibited by Airgas’ policies.
Employee’s Hemp Use Leads to Positive Drug Test
Shortly thereafter, Airgas selected Fisher for a random drug test, which the drug testing vendor HireRight reported to be positive for “marijuana.” Fisher denied using marijuana, asked for a retest, and explained his use of Free Hemp might have caused the false positive. Airgas agreed to retest but used the same sample for the retest and did not alert HireRight that Fisher had been using “hemp” or inquire whether hemp could cause a positive test for marijuana. Fisher personally contacted HireRight about the issue, and HireRight’s Chief Medical Officer informed Fisher by email that he had tested positive for “THCA” rather than “THC,” which is more commonly associated with marijuana use.
Airgas Defends Termination Decision with “Honest Belief Doctrine”
Airgas terminated Fisher for marijuana use, and Fisher sought reinstatement, arguing that the positive test was caused by the hemp and was mislabeled as positive for marijuana use. Airgas denied reinstatement, and Fisher sued, claiming that his firing was motivated by disability discrimination. Airgas argued that it fired Fisher because it had an “honest belief” that Fisher had used marijuana, as reported by HireRight.
What is the ‘Honest Belief Doctrine’?
The “honest belief doctrine” holds that if an employer had an honest belief regarding its nondiscriminatory reason for a discharge decision, the reason would not be deemed to be a “pretext” for unlawful discrimination, even if the evidence later demonstrates that the belief was mistaken. However, the honest belief doctrine requires that the employer must make a “reasonably informed and considered decision” based on the “particularized facts” before the employer in order to successfully rely on the honest belief doctrine.
Key Takeaways for Employers from This Curious Case
The Sixth Circuit held that Airgas could not take advantage of the honest belief doctrine because Airgas failed to inquire of HireRight regarding Fisher’s explanation for his positive test result before firing him. This case again highlights the value of engaging in a reasonable investigation regarding what the employer perceives to be misconduct justifying termination before making a termination decision.
If you have any questions regarding this decision or about how the reasonable belief doctrine may apply to your decision-making process, please contact the author.
Robert Horton serves as the Chair of the Labor & Employment Practice Group at Bass, Berry & Sims (Nashville). As chair of the firm’s Labor & Employment Practice Group, Bob Horton represents management in all areas of labor and employment law. Bob’s practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S.