Airgas’ ‘Honest Belief’ Tested in Court Fight Over Firing Worker

A federal appeals court panel appeared split over whether Airgas US LLC could fire a worker with cancer because a drug screening company said he tested positive for cannabis, even though the test actually detected a substance from the legal hemp product he was taking to treat his pain.

During oral argument Thursday, one judge on the US Court of Appeals for the Sixth Circuit expressed skepticism that Airgas could avoid going to trial by relying on the screening company’s statement, especially in light of what former technician Murray Fisher said about his drug use and medical condition.

A second judge showed support for Airgas’s handling of Fisher’s objections and subsequent termination.

But the third member of the three-judge panel had sharp questions for lawyers representing both parties, leaving the outcome of the Sixth Circuit case in doubt.

The ruling will likely turn on the court’s view about whether Airgas acted reasonably enough to be shielded by the honest belief rule. That doctrine protects companies from liability for allegedly biased employment actions if they offer legitimate reasons based on incorrect information that they reasonably trusted at the time.

A federal judge in Ohio relied on the rule to throw out Fisher’s discrimination claim under state disability law, rejecting the argument that the company used the test result as a pretext to conceal biased decision making.

Fisher began using a legal hemp product called Free Hemp shortly after returning to Airgas from leave to treat his liver cancer. He failed a random drug test about a month later, then was fired after he told the company about his Free Hemp use, requested a retest, and failed it.

Fisher died in July.

‘Bent Over Backwards’

Sixth Circuit Judge David McKeague, a George W. Bush appointee, emphasized during oral argument that Airgas granted Fisher’s request for a retest and had the screening company review those results before firing him.

“The company, it seems to me, bent over backwards to try to overcome this positive test so this guy could stay employed, and he’s failed at every step,” McKeague told Fisher’s attorney, Michael Conway of Michael Conway and Co. “So I just don’t understand where you say the pretext is here.”

Conway responded that one part of the alleged pretext is evidence that an Airgas human resources officer said he didn’t care whether the results of the test were accurate.

And the drug test report said Fisher’s urine contained THCA—which is not a restricted substance—rather than the THC that comes from cannabis, Conway said.

‘Pretty Big Stone’

But Airgas isn’t required to be a toxicologist, and the screening company said he tested positive for cannabis, said Judge Raymond Kethledge, a George W. Bush appointee.

While Kethledge showed some support for Airgas’ reliance on the test results, he also pressed the company’s lawyer about what it should have done in response to Fisher’s seemingly credible statements about legal hemp use.

“Why didn’t your client have some obligation to do some reasonable investigation about why it might not be hemp rather than marijuana?” Kethledge asked Airgas’ attorney, Jason Husgen of Husch Blackwell LLP. “This is a predicate for the honest belief rule, that it has to be a reasonable determination, not crazy, not derelict, et cetera.”

Husgen said the law doesn’t require the company to “leave no stone unturned.”

“Right, but this is a pretty big stone,” Kethledge replied.

Scope of Rule

Judge Karen Nelson Moore, a Clinton appointee, showed the most doubt about whether the honest belief rule protects Airgas. She asked Fisher’s lawyer why the evidence—namely his client’s statements about taking legal hemp and the test results showing THCA rather than THC—doesn’t “completely pierce the honest belief about the reliability of the test.”

Airgas “chose a policy of ignorance,” Conway replied.

“My guy was dying of cancer, it’s undisputed,” he said. “It’s not like he was some recreational drug user that is partying at work.”

Moore also questioned the scope of the honest belief rule in the case.

“The honest belief rule here would be saying in effect: you can have an honest belief that someone who has tested positive for THCA has imbibed or ingested marijuana, and you can fire him for that, even though he says, ‘hey guys, you know I’ve had liver cancer and have been out for eight weeks and have had half my liver removed and such, and I’m taking hemp, which is a legal product,’” she said. “The honest belief rule lets you fire the person.”

The case is Fisher v. Airgas USA, LLC, 6th Cir., No. 23-03286, oral argument held 12/7/23.