A union maintenance electrician who was also a member of the company's safety committee filed a grievance against Virbac Corporation after being terminated for testing positive for marijuana. The employee had been required to submit to a drug test as part of a return-to-duty physical. Testing positive for marijuana, the employee admitted to using the drug to alleviate pain during his medical leave; however, the employee was not a licensed medical marijuana user under Missouri law.

A Medical Review Officer attempted to reach the employee before certifying the results, as warranted in the confirmatory testing process, but the employee did not respond to contact attempts. As such, the MRO reported the test result as positive. The employee was suspended and afforded an opportunity to provide documentation supporting the test result. Upon failing to provide supporting documentation, the employee was terminated.

During the initial grievance meetings, the employee claimed his positive test result was based on the lawful CBD oil use. Later during the arbitration, the employee confessed to having smoked marijuana before and after he was tested and had returned to work.

Ultimately, the arbitrator determined that the employer met its burden of demonstrating just cause for the termination based on a few factors, including that the Department of Human Health and Services' testing thresholds are "effective, lawful and enforceable" and do not require "impairment."

Employers are encouraged to continually evaluate internal policies along with jurisdictional laws and regulations pertaining to the use of marijuana as it relates to drug testing and subsequent decisions on employment status.

Posted: March 9, 2021