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Spiggle Law What Happens If You Fail An Employer’s Drug Test Because of CBD?. Protecting employees from wrongful employment practices. 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

What Happens If You Fail An Employer’s Drug Test Because of CBD?

The last few years have brought about significant changes in how both the law and society perceive the consumption of cannabis. This had led to a lot of confusion about what’s legal, especially with cannabidiol (CBD). One topic in particular relates to employer-mandated drug testing.

There have been a number of cases where an employee consumes a product containing CBD then later tests positive on a drug test. How is this possible and what can an employee do if this happens to them?

Common Cannabis Terms

Before we answer the above two questions, let’s go over some of the terms that often come up in this discussion.

  • Cannabis: Refers to the family of plants that produce cannabinoids, such as CBD. Common cannabis plants include marijuana and hemp.
  • Cannabinoids: A naturally occurring substance produced by cannabis plants.
  • THC: Short for delta-9-tetrahydrocannabinol, a type of cannabinoid. THC is psychoactive and is the active ingredient in marijuana that allows users to get “high.”
  • CBD: The abbreviation for cannabidiol, which is a type of cannabinoid. But unlike THC, CBD does not get a user high.
  • Marijuana: a type of cannabis plant that produces high levels of THC and some amounts of CBD.
  • Hemp: another type of cannabis plant that produces low levels of THC, but high levels of CBD. Hemp also has other uses, such as making rope.

The Legality of CBD

One of the first questions to address is whether CBD is legal. The short answer is that, “it depends.” It depends on several variables, such as:

  • Whether an individual is selling or buying CBD.
  • How the CBD is being sold, such as in food, as an oil, etc.
  • The applicable state law.

Also, keep in mind that this area of the law is quickly changing. So what’s illegal today might be legal in a few months or vice versa. So without getting too deep into the weeds in answering this question, let’s just focus on a few key points about the legality of CBD.

First, the U.S. Food and Drug Administration (FDA) has only approved one CBD product and it’s used to treat two rare forms of epilepsy.

Two, the Agriculture Improvement Act of 2018 changed how hemp plants are viewed under federal law. Essentially, as long as the hemp plant or a derivative from the hemp plant contains no more than 0.3% THC on a dry weight basis, it will no longer be considered a controlled substance under federal law.

Three, states largely have the right to restrict or regulate the sale, use and possession of cannabinoids. For example, in Washington, D.C., the possession and private use of small amounts of marijuana is legal for individuals 21 years of age and older. But in Idaho, CBD is legal only if it contains zero THC and is derived from one of the five listed parts of a cannabis plant. In most states, CBD is legal under certain circumstances.

Why CBD Can Cause Problems for Employees

Assuming CBD is legal is where the employee works and lives, consuming CBD can still cause problems. That’s because it can sometimes contribute to a false-positive drug test. This can occur even if the employee has never consumed marijuana. There are several possible explanations for this.

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The first explanation involves the CBD product the employee consumed containing enough THC to create a positive test result. Most employment drug tests do not technically look for marijuana, CBD or another cannabinoid. What the test actually looks for is a metabolite, which is a substance formed when the body metabolizes a drug.

When an employer confronts an employee about testing positive for marijuana, what the employer is really saying is that the employee had unacceptable levels of a THC metabolite in the employee’s system. So that begs the question, how did the THC get into the employee’s body? Most likely, from the CBD product.

Almost every single CBD product available for sale in the United States is unregulated. In practice, this means what the manufacturer says is in the CBD product could easily be wrong. According to a 2017 study, 18 out of 84 CBD products tested contained THC at levels high enough to result in impairment or intoxication.

The second explanation of the positive drug test result has to do with an error in drug testing. Perhaps the individual or technician in the laboratory mixed up two samples or allowed for cross-contamination. Or maybe inaccurate testing methods were used. False-positives are known to happen.

Finally, there’s the possibility that the employee consumed enough properly labeled CBD product over a short enough period of time such that enough THC was able to build up in the body to levels detectable by a drug test.

What Can an Employee Do If They Believe They Are the Victim of a False Positive Marijuana Test?

If an employee is told they tested positive and will get fired or suffer another form of employment discipline, there are a few things they can do.

First, they can explain the situation to the employer. Depending on the employer, there may be a specific individual designated to handle the employer’s drug-testing program. When explaining the situation, the employee can bring the CBD product they took and explain how they took it.

Second, the employee can ask for a retest. Many drug testing laboratories will save part of the original sample to test again in case of a mistake with the first test. Another possibility is the employee producing another sample for testing.

Third, the employee can talk to a union representative (if applicable). Employees who are union members may have special grievance procedures in place for such a situation.

Fourth, if the employee is considering any legal action, they probably can’t sue the employer unless the employer improperly conducted its drug test, such as implementing the drug test in a discriminatory manner.

Most likely, if the employee can sue anyone, it will be either the maker of the CBD product or the drug testing laboratory. Some states allow individuals to sue drug testing companies for incorrect test results.

Summing It Up

Because of the unregulated nature of CBD products in the United States, an employee can consume a CBD product that contains high enough levels of THC to create a positive drug test result. Employees wishing to take a CBD product need to be wary of any CBD product that promises not to contain any THC or have THC at levels low enough not to be detected on a drug test.

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The ABCs of CBD in the Workplace

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.

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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. Should you need assistance with your policy revision or with crafting appropriate notices to your employees, do not hesitate to contact any member of the McNees Labor and Employment Group.

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