On March 21, 2018, Senate Enrolled Act 52 was signed into law (Public Law 153), legalizing the sale and use of cannabis-derived CBD oil (with a THC level of 0.3 percent or lower) throughout Indiana. The Act’s passage raises new questions for both employers and employees, including on the interplay between the legalization of CBD oil and workplace drug testing.

The Basics on Drug Testing in Indiana

Many Indiana employers have drug testing policies in place. Benefits include the creation of a safe workplace, enhanced product quality, performance management and productivity, deterrence, and legal compliance, among others. Unlike other states, and with limited exception, Indiana does not regulate drug testing by private employers. As a result, employers have wide latitude in selecting appropriate testing protocol(s) for their workplace. A basic five-panel drug screen, for instance, tests for marijuana (THC), cocaine, opiates, PCP and amphetamines. While employers’ policies and practices vary, a positive drug test can ultimately result in action ranging from the rescission of a job offer to termination of employment.

Background on CBD Oil

CBD oil, extracted from the cannabis or hemp plant, has received much recent media attention for its use in treating a wide variety of medical conditions and ailments. Unlike other products derived from the marijuana plant, CBD oil is promoted as lacking psychoactive properties because of its low level of tetrahydrocannabinol, also known as THC. In Indiana, CBD oil must have a total delta-9-tetrahydrocannabinol level of 0.3 percent or lower to be legally bought or sold throughout the state. (More specific certification requirements for THC levels in CBD oil apply to CBD oil distributed or sold July 1, 2018 or after.)

Given CBD oil’s low level of THC — the substance which ordinarily triggers a positive drug test — at least one major drug testing service provider is publicly advising that average CBD oil users would not be expected to test positive on a drug test for marijuana or marijuana metabolite. (According to the service, if the user were to consume more than 2,000 mg/day of CBD oil, such usage could trigger a positive drug test.)

However, the jury remains “out” on exactly how CBD oil could impact a drug screen. There is some discussion that the consumption of CBD oil in tandem with marijuana usage may result in higher THC levels for a longer period of time — thus increasing the chances of a positive drug test — and, further, that CBD may be converted into THC in the stomach once taken orally. In other words, there is no guarantee that CBD oil usage will or will not impact a drug test. As a matter of federal law, CBD is a marijuana extract and therefore falls within the definition of marijuana (classified as a Schedule I drug by the Drug Enforcement Administration). Because CBD oil is a marijuana derivative, its use would not be accepted as a legitimate medical explanation following a positive drug test.

What if an Employee Attributes a Failed Drug Test to CBD Oil Usage for Medical Reasons?

With the legalization of CBD oil in Indiana, drug testing employers will likely receive thorny questions about the interplay between CBD oil usage and drug testing. As a preliminary matter, employers should take care to ensure that any professionals handling drug testing questions are up to date and prepared with consistent talking points. Additionally:

• Given the many uncertainties regarding CBD oil (e.g., varying levels of THC, questions regarding how CBD metabolizes, etc.), employers should refrain from advising applicants or employees regarding the risk of CBD oil usage and testing positive on a drug test.
• As prior to CBD’s legalization, if an applicant or employee tests positive for marijuana on a drug test, use of CBD oil would not be an acceptable defense, and the consequences of failing a drug test under the employer’s particular policy would apply.