Written By Lucas Kibby, CleanFleet
From makeup, drinks, food products, and stress relief oils and capsules, cannabis-based goods are flowing into the marketplace and employers are now grappling with employer CBD use and the rising legalization of recreational and medical marijuana in states across the country.
So, where do we stand right now? Eleven states including California, Oregon, Maine, Illinois, and the District of Columbia have made it legal for adults to possess small amounts of marijuana for recreational use. Meanwhile, 28 states, along with the District of Columbia have extensive medical marijuana programs and 17 more permit the use of products with a low level of THC to address medical concerns.
Despite the rising number of states legalizing the drug, testing workers for marijuana (products with over 0.3% THC) has dipped only slightly nationwide.
The percentage of urine drug tests that included screening for marijuana fell to 97.6% in 2018 from 99.2% in 2015, according to Quest Diagnostics. In states where recreational use of marijuana is allowed, the percentage of such tests dropped to 94.7% from 98.5% during that time period.
While CBD may not get you high, they are still causing problems at work. So how do employers address CBD?
Before we get there, let us define what CBD is and isn’t. Cannabidiol, or CBD, is one of the many cannabinoids that can be extracted from marijuana or hemp plants. However, unlike tetrahydrocannabinol (THC) that is psychoactive, CBD extract does not have psychoactive properties.
Since 2018, when federal legislation in deemed that hemp was not an illegal controlled substance (like marijuana), CBD has been showing up in a widening array of goods.
Cannabinoid containing oils is made by using a strain of the marijuana or hemp plants that has a high CBD content and a low THC content. The reason for this is because tetrahydrocannabinol has been shown to counteract the medicinal benefits of CBD if there is high THC content versus low CBD. Therefore, only specific strains can be used for production.
According to Isodial’s website, “the oil is then filtered through various chambers under low temperatures and high pressure to ensure that the final product is of the purest medicinal oil available; meaning no other extracts found in the plants such as chlorophyll.”
Small amounts of THC can be left over, and manufacturers can sell CBD products that contain less than 0.3% THC because that amount is not enough to give the user any psychoactive side effects.
However, the extraction processes and product labeling have not been well regulated and is where the issues come into play. There is currently only one CBD drug that has been FDA approved, Epidiolex, which treats two epilepsy conditions and contains no more than 0.1% THC.
One of the things the FDA verifies when approving a product is the amount of each ingredient being used in product. This means, that because every other CBD product has not gone through the FDA approval process, the ingredients on these product labels may not be accurate. Therefore, many CBD products that claim they have no or little THC could be misleading.
Non-FDA approved CBD products are classified as Schedule 1 drugs, making them still illegal to produce, distribute, and possess. These are often referred to as “marijuana extracts”.
Testing Positive On A Drug Test For Using CBD Products
Most drug test panels, including the one used for federally regulated drug tests, test for THC, not CBD. However, CBD products may contain levels of THC that lead to a positive drug test.
Dr. James Berry, WVU Medicine said, “It is possible to test positive for THC if THC is in that particular batch of CBD oil. That’s where I warn people, buyer beware, despite what the label on that bottle says you don’t know exactly what is in there. There could be THC or there could be any other product that could be harmful for you”
The issue has drawn the attention of the FDA. “In addition to safety risks and unproven claims, the quality of many CBD products may also be in question. Many were found to not contain the levels of CBD they claimed. We are also investigating reports of CBD potentially containing unsafe levels of contaminants.”
Since we don’t know what exactly is in products containing CBD, or how much, employees should be careful when using these products. Also, since these products are not FDA approved, there are no valid prescriptions for them, and positive results cannot be overturned by a medical review officer (MRO).
How to Address CBD Oil in Company Drug Testing Policy
Problems that are arising include: job applicants not knowing what is in their CBD product, what impact CBD may have on their employment, and what happens if a worker received a positive drug test result even if an employee presents you with a “CBD pure” product as proof.
Here are some guidelines when developing a CBD oil company policy:
1. Review state laws
According to an XpertHR’s survey of more than 700 professionals, nearly 25% of human resource managers say they “are extremely challenged” trying to complywith the various laws.
Employers can, generally, prohibit the use of marijuana on their premises, even if an employee is legally allowed to use it for medicinal purposes and job applicants, as well as hired workerswho test positive for THC, can be denied employment or fired if that is the workplace’s policy.
But increasingly there are some state or jurisdiction exceptions.
- New Jersey: The medical use of marijuana is legal but there are protections for workers or job applicants who test positive for the drug. Employers must offer workers or job applicants who test positive the chance “to present a legitimate medical explanation for the positive test result,” or to retake the test at their own expense, according to the statute. Employees can still be penalized for using medical marijuana at workor forbeing impaired by the drug during work hours.
- Oklahoma: They permit the use of medical marijuana but says employers cannot discipline or refuse to hire someone solely because they test positive for marijuana.That doesn’t apply however to those who don’t have a health-related reason to use the drug orwho have jobs deemed “safety-sensitive.”
- New York City: As of May, employers with at least four people on staff cannot require a job applicant to take a test for marijuana as a condition of being hired. The law does not override drug testing that is mandatory in collective bargaining agreements or required to get a job with the federal government. It also doesn’t apply to those wanting to work in law enforcement, childcare, and other fields where the public or other workers can be impacted.
Most CBD products are not regulated by the FDA and run the risk of containing more than the federally permissible amount of THC, even if sold in a state that does not permit the sale of marijuana products. So, there is a possibility that an employee could use what he or she believes to be a legally permissible, hemp-derived CBD product, but the unregulated product could trigger a positive test result for THC. In those types of situations, an employer may not definitively know whether the positive result was triggered by CBD oil or marijuana use.
2. Consider revising policies to address CBD use
Employers should consider updating their anti-drug guidance “warning employees of this issue because it is a very big problem. Studies show a lot of these CBD products are containing higher levels of THC.”
The Society for Human Resource Management has also offered guidance. “While some states have legalized recreational and medical use of marijuana, it is still illegal under federal law. In states where it is legal, employers should ensure compliance with state laws, which may require a review of the circumstances.”
There may also be rules specific to the medicinal use of CBD. An employer might decide to make an exception to its drug policy if the person has a disability for which they use CBD oil, particularly if they are not impaired on the job.
3. Talk with your employees and train managers
Your managers will need to know how to address situations where an employee defends a positive drug test result by using CBD. We hear this often in our industry.
If someone who is using CBD oil keeps their use of it private and tests positive for THC, it is best practice for employers to refrain from taking action until they have a conversation with the worker. An employer might decide to make an exception to its drug policy if the person has a disability for which he or she uses CBD oil, particularly if he or she is not impaired on the job.
Employees should give their workplace a heads-up. It is best practice for an employee using CBD products to alert their employer so there are no unexpected consequences down the line. The simplest thing to do is go to a doctor, get a prescription, and make sure your employer is aware of it as we do not want people trying to do the right thing to get penalized.
Employees should also read CBD product labels carefully. However, it is still a very much ‘Buyer Beware’ CBD world, so consider cutting out CBD while job hunting until CBD products are better regulated.
Employers and employees need to understand that the marijuana industry is largely unregulated as of now. Since we don’t know what exactly is in products containing CBD, employees should be careful on using these products.
Employers should work with employment counsel and prepare to be flexible until more CBD rules and regs are in place. Employers should also outline how they want to handle CBD use among employeesin their drug and alcohol policies. Then, take time to educate employees on the dangers and consequences of using CBD products.
CleanFleet can help review policies and put together trainings for employees about CBD. If your employer needs help handling CBD in its workplace, please call (503) 479-6082 or check out more details from our policy development page.