Can you be fired for using CBD oil? North Carolina woman says no — and a judge agrees – Charlotte Observer

A 54-year-old woman in North Carolina who used CBD oil to treat a medical condition was fired when she tested positive for THC, according to court documents.

Her employer argued THC is an illegal substance and the firing was justified. But a judge wasn’t convinced.

In a filing Tuesday recommending her wrongful termination lawsuit move forward, Magistrate Judge David S. Cayer said CBD oil is a legal product under North Carolina law — even when it contains small amounts of THC that would otherwise be considered a controlled substance.

“The court finds that hemp-based CBD oil made from Cannibis sativa L. containing less than 0.3% THC by dry weight is not an illegal drug but a lawful commercial product,” Cayer wrote. “Therefore, plaintiff has alleged that she was she was using a lawful product and that her use of that product was lawful.”

Jean Smith worked for Manheim Statesville, a car auction business in Iredell County operating under corporate parent Cox Automotive Inc., as a supervisor for more than 14 years before she was fired, according to an amended complaint filed in September.

Attorneys and representatives for Manheim Statesville as well as a spokesperson for Cox Automotive did not immediately respond to McClatchy news group’s request for comment.

The lawsuit states that Smith was “a loyal, reliable and respected employee” but suffered from fibromyalgia and anxiety.

Doctors prescribed Smith several medications with “harsh side effects” to handle the pain before recommending CBD oil, her attorney said in the complaint.

When a workplace injury sent her to a local Urgent Care and she was drug tested, the suit states Smith was “shocked” to discover she tested positive for THC.

She was injured “when a windstorm blew an open truck door against her hand,” according to the complaint.

Smith’s attorney said the corporate office ignored her direct supervisors’ recommendation she keep her job.

“Defendants’ corporate managers, fully aware that plaintiff was using CBD oil with a doctor’s approval, that she had not shown any signs of impairment at work, that her THC level was below the DOT detectable level for commercial drivers, nonetheless insisted that plaintiff be terminated,” the complaint states.

Counsel for her employers responded with a motion to dismiss, saying Smith “admittedly failed a post-accident drug test and tested positive for an unlawful controlled substance.”

But the judge disagreed Tuesday.

In a memorandum recommending the motion be denied, Cayer said Smith’s employers had argued her CBD usage was illegal given that THC is a controlled substance under state law.

But counsel for Smith reportedly argued such an interpretation “would nullify the statutes legalizing hemp,” and Cayer seemed to agree.

When two statutes apply to the same situation, he said the one that applies “more directly and specifically” is viewed as the controlling law.

According to the memorandum, North Carolina specifically legalized products made from industrial hemp with THC concentrations below .3 percent in 2015 — meaning Smith’s use of CBD oil was entirely legal.

If a federal judge presiding over the case accepts Cayer’s recommendations, Smith will be allowed to move forward on her claims for wrongful termination as well as disability and age discrimination.

Counsel for Smith declined to comment Tuesday.

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