Eighth Circuit Rules that Termination for Drug Test Caused by Use of CBD Oil Permissible

Eighth Circuit Rules that Termination for Drug Test Caused by Use of CBD Oil Permissible

Under At-Will Doctrine

Case and Court: Flannery v. Peco Foods, Inc., Case No. 24-2429 (8th Cir.)

Issue: Did an employee who used CBD oil to alleviate back pain caused by a workplace injury and was terminated following a positive drug test raise a valid claim for unlawful discharge?

Holding: At least in the manner that the claim was advanced by the employee, no. Arkansas’s at-will employment doctrine permits termination for any reason, and no facts or theories advanced by the appellant-employee removed the case from the bounds of that doctrine.

Summary:

Kelly Flannery worked at an Arkansas chicken-processing plant owned by Peco Foods, Inc. After suffering a back injury at work, he began receiving treatment under worker’s comp. Part of that treatment included pain management. And as part of pain management, the workers comp doctors gave Mr. Flannery a drug test. After testing positive for THC, Flannery was terminated.

Flannery, who asserted that the positive test was due to his use of CBD oil to help with pain, subsequently filed suit for unlawful termination. First, he alleged a breach of contract/breach of his right to good faith and fair dealing in Peco Foods’ performance of the contract. However, Peco’s position was that under Arkansas’s long-established at-will employment doctrine, it can “discharge its employees at any time, ‘for good cause, no cause, or even a morally wrong cause.’” Flannery v. Peco Foods, Inc., No. 24-2429, 2025 WL 2437231, at *1 (8th Cir. Aug. 25, 2025) (quoting Smith v. Am. Greetings Corp., 804 S.W.2d 683, 684 (Ark. 1991)). Because both the district court and the Court of Appeals agreed, the breach of contract claim failed.

However, that determination did not end the inquiry, as there are exceptions to the at-will doctrine. One is when the termination violates some established public-policy exception. Another is what’s sometimes known as the “handbook exception”, whereby the plaintiff claims that they relied on some promise set forth by the employer in a handbook, manual, etc., not to terminate except for under certain circumstances.

Unfortunately for the public-policy argument, it was only raised during summary judgment briefing. Therefore, it was rejected as untimely. The second exception also failed, as the manual expressly denied creating any sort of dismissal for cause standard: “Far from imposing such a limit, it said the exact opposite: either party could “end the employment relationship” at any time, “with or without notice[,] and for any reason or no reason” at all. If anything, it made clear that he was an at-will employee.” Id.

Additional claims that he sought to bring through an amended complaint were also rejected. A worker’s comp retaliation claim was not viable because that claim is not recognized under Arkansas law. A proposed federal disability claim could not be pursued because Mr. Flannery had not gone through the administrative process necessary to brining one. Other stray claims were dispatched with in a footnote.

Accordingly, the summary judgment decision in favor of the employer was affirmed.

Bottom Line: Despite being an unpublished, four-page, per curiam opinion, Flannery is nonetheless worthy of note. One way is as a reminder of how far-reaching and powerful the at-will doctrine is in Arkansas. Though exceptions do exist, the reality is that they will rarely apply. Indeed, Arkansas employers tend to be quite careful about ensuring that their handbooks disclaim anything that might be potentially held up as ceding their ability to terminate at will.

Unfortunately, the list of things an employer may fire someone for doing is quite long, and many terminations that might be unfair in some way simply cannot be challenged to any meaningful degree. Though the laws concerning marijuana and other items containing THC are generally becoming more permissive, the great deal of discretion to terminate that employers have should always be kept in mind when considering the potential consequences of a given personal decision/action.

Perhaps more important than what the opinion expressly says, though, is what it does *not* say. It does not, for instance, determine that someone fired for a positive drug test caused by their use of a legally available product to treat pain never has a viable way forward. Rather, due to the timing of the disability and public policy arguments, they were essentially forfeited. Some later plaintiff who pursues such a case as a disability claim may fare better under either the Americans with Disabilities Act or the Arkansas Civil Rights Act.

Indeed, Arkansas’s medical marijuana amendment, though rather untested in this area and drafted a bit elusively, seems to contemplate at least some level of workplace protection for cardholders. See Ark. Const. amend. XCVIII, § 3. One wonders how the plaintiff might’ve fared if he had obtained a medical marijuana card instead of taking CBD oil without any apparent medical professional’s suggestion that he do so…

Arkansas offers a relatively low level of protection to its workers. Therefore, the way that a claim is pleaded and presented is crucial to the success of an unlawful discharge claim.

Contact our firm if you believe that you have been unlawfully terminated or otherwise subject to unlawful treatment in the workplace.