Louisiana’s Fourth Circuit Court of Appeals has reversed the termination of a New Orleans firefighter who tested positive for a controlled substance because the city failed to account for his taking physician-approved legal cannabidiol.
FF Gregory Matusoff was terminated in 2018 following a drug test that was associated with a line-of-duty injury he sustained. In his 12-plus years as a New Orleans firefighter, he sustained a number of job-related injuries, including one that kept him out of work for from August 2016 to August 2017. Among the medications he was taking with the approval of his doctor was cannabidiol or CBD.
CDB is derived from the cannabis plant. Prior to 2018, CBD was illegal in the United States under federal law. The Farm Bill of 2018 legalized the growing of hemp, a form of cannabis that is low in THC, but a source of CBD. As a result, CBD became legalized.
As explained by the court:
- On November 10, 2018, Mr. Matusoff, along with fellow firefighters, responded to a fire at a local restaurant.
- While on the roof, Mr. Matusoff tripped on an undetected pipe and fell on his hip, injuring his hip, back, and shoulder.
- The fall resulted in a serious injury, which led to multiple surgeries and exacerbated the prior injuries that Mr. Matusoff had sustained in his work as a firefighter.
- Consistent with NOFD and Civil Service rules, because an injury was sustained in the course of his duties, Mr. Matusoff submitted to a substance abuse test.
- His urine sample tested positive for marijuana metabolite.
- By a mailed letter, dated November 16, 2018, Civil Service Director Lisa Hudson notified Matusoff of his positive test and that he had five days to appeal the result or provide an explanation to the Medical Review Officer (“MRO”).
- Matusoff received the letter on November 21, 2018, the last day of the five-day period.
- The MRO verified the positive result, without considering Mr. Matusoff’s explanation, medical history, and biomedical information on November 19, 2018, two days prior to the expiration of the five-day period.
- Matusoff received a pre-termination letter dated November 28, 2018.
- On December 3, 2018, a pre-termination hearing took place.
- Matusoff submitted over one hundred pages of documents, including letters from his pharmacist and doctor, supporting his explanation that he was taking CBD, which was recommended by his pharmacist and approved by his doctor, as part of his pain management regimen.
- On December 4, 2018, the Deputy Chief of Safety called Mr. Matusoff and asked whether he had submitted the information provided at the pre-termination hearing to the MRO.
- Matusoff stated that he had not provided this information to the MRO.
- Only after Matusoff’s termination did the NOFD provide this information to the MRO.
- On December 5, 2018, the NOFD sent Matusoff a letter terminating his employment.
- As the sole basis for termination, the letter cited the violation of paragraph X.B.5 of PM 89, which identifies an MRO-certified positive test result for the on-duty consumption of an illegal substance as a terminable offense.
Matusoff appealed his termination to the Civil Service Commission who upheld the decision. He then appealed to the Court of Appeals alleging NOFD failed to meet its burden of proof because it could not prove he consumed an illegal substance while on duty, and that termination was an excessive punishment for any rule violation that did occur.
The Court of Appeals agreed with Matusoff on both accounts:
- NOFD and the Commission apparently accept Mr. Matusoff’s explanation that the CBD product was the cause of his positive test for a prohibited substance.
- There are a number of problems with the NOFD’s case against Mr. Matusoff. Chief amongst them is that the sole reason given for his termination in the termination letter and the reason the Commission’s denied his appeal are not the same.
- The NOFD charged Mr. Matusoff with violation of X.B.5 of PM 89, which is the consumption of a prohibited substance while on duty.
- The NOFD failed to meet its burden of proving that Mr. Matusoff had either used an illegal/prohibited substance or consumed it while on duty.
- This failure was admitted by the testimony of one of the NOFD’s expert witnesses and was recognized by the Commission in its decision to deny Mr. Matusoff’s appeal for reasons other than set forth in the termination letter.
- Therefore, the NOFD failed to meet its burden of proving by a preponderance of the evidence that Mr. Matusoff was terminated for his consumption of an illegal substance while on duty.
- The Commission was also arbitrary and capricious and abused its discretion when it upheld Mr. Matusoff’s termination for reasons not contained in the termination letter.
- NOFD failed to satisfy its burden with respect to the occurrence of the complained of activity.
- Consequently, the Commission abused its discretion in denying Mr. Matusoff’s administrative appeal.
- However, even if the NOFD had met its initial burden, the Commission erred in finding that the discipline, i.e., termination, was commensurate with the infraction.
- Termination from permanent employment is the most extreme form of disciplinary action that can be taken against a classified employee.
- Mr. Matusoff’s discipline for the use of a CBD product is an issue of first impression. The product was purchased legally and was not on any list of prohibited substances that Mr. Matusoff was aware of.
- The product was also recommended by a physician and a pharmacist. At the time of the incident, Mr. Matusoff was a twelve-year veteran of the NOFD with no record of any prior disciplinary action.
- As such, termination was not commensurate with the alleged infraction. Therefore, the Commission abused its discretion.
With that the court ordered Matusoff reinstated as a firefighter.
Here is a copy of the decision, handed down last week:
Incidentally, I have been contacted by many fire chiefs and firefighters over this very issue. Legal CBD derived from hemp can contain small amounts of THC. In fact, legalized hemp can contain up to 0.3 percent THC. Expert opinions differ on whether that level of THC can trigger a positive THC drug test in someone using legal CBD.
However, here is the bigger challenge: if a firefighter goes to a pharmacy and purchases legal CBD, but the manufacturer (intentionally or inadvertantly) sold CBD derived from a marijuana plant (0.4% THC or higher), is that grounds to discipline or terminate a firefighter who had no reason to know of the mistake? This fact pattern poses problems for firefighters seeking to legally use CBD as well as fire departments trying to ensure personnel are not impaired when they are at work.
Stay tuned as this legal challenge plays itself out across the country.