If you walk into the supplement section of your local health food shop or check the spam folder on your email, you’ll see multiple ads or displays for CBD products. Cannabidiol (CBD) is a compound found in cannabis plants, like marijuana and hemp, that can be extracted and included in oils, vaporized liquids, and other formulations. Unlike another compound found in both plants, tetrahydrocannibinol (THC), pure CBD is non-psychoactive, meaning it won’t produce a “high” when eaten or inhaled. CBD is being marketed for all kinds of ailments, from pain to anxiety to skin conditions.
There’s a good chance that some of your employees currently use a CBD product on a regular basis, which raises the question: How do you address use of a cannabis-related product like CBD in the workplace?
A little background first:
- Most CBD in commercial products is claimed to come from extraction from the hemp plant.
- The Agricultural Improvement Act of 2018[1] passed by Congress in December 2018 “legalized” industrial hemp production, removing hemp from regulation under the federal Controlled Substances Act and classifying hemp as an agricultural product.[2] That means that pure CBD derived from agricultural hemp, which is defined as a cannabis plant having not more than 0.3% concentration of THC, would likely be considered legal if production meets federal and state regulations.
- Note that CBD derived from the marijuana plant, however, would remain illegal under federal law, though it possibly may be legal under some state laws addressing medicinal or recreational use of marijuana.
So, if an employee is using a CBD product, that means he or she likely won’t trigger a positive result for marijuana use on a drug test, right?
Well, not necessarily:
- Most CBD products are not regulated by the Food and Drug Administration (FDA) (the only CBD product that’s currently “approved” by the FDA is Epidiolex, a CBD oil that is used to treat symptoms of some types of epilepsy). That means there is little to no standardization in the CBD products that are being marketed, which could lead to those products containing measurable levels of THC.
- In fact, a recent case from New York revolves around that particular issue. In that case, a truck driver purchased online a CBD supplement to help alleviate pain and inflammation caused by a medical condition.[3] The supplement was advertised as being derived from industrial hemp and containing no THC. Unfortunately for the driver, he tested positive for THC after undergoing a standard drug test by his employer and was terminated. The driver has sued the manufacturer of the supplement, alleging that the supplement actually contained THC and caused him to test positive and thus lose his job. The case is still wending its way through the federal court system.
Does employee use of products containing CBD mean that a North Carolina employer should change its drug testing policies or practice?
Again, not necessarily:
- If an employee is using a CBD product and tests positive for THC during a drug test, North Carolina employers do not have to excuse an employee from the consequences, regardless of the source of the substance (particularly if the employer is subject to USDOT regulations governing drug testing). However, it’s advisable that employers faced with this situation meet with the employee to determine whether CBD use caused the positive test. It is the employee’s responsibility to provide an explanation and show that the product itself was the cause of the positive test, not some other form of marijuana use.
- Employers considering a ban on the use of CBD products by their employees could face several issues that would make doing so inadvisable or impractical. For example, given the growing prevalence of CBD-based products in the marketplace, it probably would be impossible to effectively police such a ban. Also, it is possible that an employee may claim that his or her use of a CBD product (particularly medically prescribed CBD-related products) is tied to a medical condition or disability, thus raising the specter of a possible ADA issue or accommodation claim. As an alternative, employers should consider providing information to their employees informing them of the risks of using CBD products and the potential consequences of testing positive during drug testing given the lack of market standardization.
So, what’s next?
CBD product use by employees is likely to increase. Given the absence of clear government oversight of the production and use of the compound, however, employers should be prepared for the possibility of more frequent positive THC tests in their drug testing programs.
If you have questions or concerns about your drug testing procedures, please feel free to contact us.
[1] See P.L. 115-334 (Dec. 20, 2018).
[2] The North Carolina General Assembly passed legislation in 2014 exempting certain “caregivers” (as defined in the statute) from the state’s Controlled Substances Act for possessing CBD derived from hemp for the alternative treatment of epilepsy. See N.C. Gen. Stat. s. 90-94.1.
[3] See Horn. v. Medical Marijuana, Inc., Case No. 15-CV-701-FPG (W.D.N.Y. Apr. 17, 2019).