The ABCs of CBD in the Workplace

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McNees Wallace & Nurick LLC

Lately, products containing CBD (from beer to skin cream to oils that can be diffused and vaped) seem to be all the rage.  Why are CBD products suddenly turning up everywhere (your local Sheetz convenience store for example)?  Blame it on the Farm Bill!  The Agricultural Improvement Act of 2018 (otherwise known as the U.S. Farm Bill), removed hemp from the definition of marijuana under the Controlled Substances Act.  As a result, hemp is no longer a controlled substance and, because CBD (which stands for cannabidiol) can be derived from hemp, CBD is arguably legal.

So what is the problem?  Why are people who are using CBD products still testing positive for “marijuana” and why should employers be concerned?

CBD is a chemical compound found in the Cannabis family of plants.  Notably, Cannabis has two main species – the hemp plant and the marijuana plant.  CBD is not believed to have psychoactive properties.  In other words, cannabidiol will not get you high.  The other primary chemical compound found in Cannabis plants is THC (tetrahydrocannabinol).

THC does have psychoactive properties and is known as the compound that causes the “high.” THC is also the compound that is evaluated for drug testing purposes.  One of the main differences between hemp and marijuana is the concentration of CBD vs. THC that each contains.  Hemp, by definition (as noted in the Farm Bill), contains 0.3% or less of THC.  Marijuana, can have THC concentrations of up to 20%.  CBD can be and is derived from both plant species, but for purposes of technical legality, only hemp-derived CBD is legal under the Farm Bill.  To obtain marijuana-derived CBD, in states where marijuana is not legal, an individual would require certification to use medicinal marijuana.

With that mini-science lesson out of the way, what does all of this mean for employers?

Certain CBD products – oils for example – are marketed and sold as dietary supplements that can combat a variety of ailments, for example anxiety and insomnia.  The FDA does not regulate the safety and purity of dietary supplements.  Accordingly, there is no governmental organization confirming that the CBD product contains (or rather only contains) the ingredients contained on the label.  Relative to employer drug testing concerns, there is no governmental organization checking that CBD supplements are actually derived from hemp and do not contain more than 0.3% THC.  Thus, there is a risk that the CBD supplement is not what it says it is and an employee who is “only using CBD,” may nonetheless test positive for marijuana on a drug test.  Indeed, several lawsuits have been filed against CBD manufacturers arguing that products marketed as containing only CBD and being THC free, have resulted in employees failing employer required drug tests.

Accordingly, employees using, or claiming to use, “only CBD” has created a haze of uncertainty for employers and how such claims, which typically follow a positive drug screen, should be handled.

For purposes of employees regulated by the U.S. Department of Transportation (i.e. school bus drivers and truck drivers), the answer is clear.  Last month, the DOT issued a “CBD Notice” stating plainly

The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason.  Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

In issuing this Notice, the DOT referenced cautionary statements issued by the FDA:

The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.”  The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.

So, for DOT regulated drug testing, the answer is clear – CBD is not a get out of jail free card.  Regardless of the alleged reason for the positive test, a positive test for marijuana will be a positive test for marijuana.  Employees in DOT regulated positions should act accordingly.

But what about non-DOT regulated employees?  The answer is not as clear, but there are a few common sense principles that employers can use to address and hopefully diffuse this issue.  First, as we’ve discussed in prior blog posts, employees who are certified under state law to use medical marijuana have certain protections (protection against discrimination, for example).  As a result, many employers have modified their drug testing policies to include exceptions that apply to employees who are certified to use medical marijuana.  Because an employee who is using an over the counter CBD supplement likely is not certified to use medical marijuana, that employee would not be protected by the state medical marijuana act.  Accordingly, employers may want to include a notation in their drug testing policies that the term “medical marijuana” refers only to marijuana that is obtained in accordance with a state medical marijuana program.

Second, employers should remember that employees don’t know what they don’t know.  If an employee does not realize that using CBD oil that he obtained online could jeopardize his employment, he is going to be quite upset when he tests positive for marijuana and is fired.  Accordingly, employees should be advised that there is a risk to using CBD products, that drug testing facilities will not consider alleged CBD use as a legitimate medical reason for a positive drug test and that, if an employee tests positive and does not have a medical marijuana card, the company may treat the positive test as a violation of the drug testing policy.

Finally, employees who question an employer for implementing the above-referenced practices could be directed to the FDA issued guidance on CBD products.

We’ve said it before, and we’ll say it again, if you have not revised your drug testing policy to address the issues created by medical marijuana and CBD, there is no time like the present.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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