Can An Employer Fire You For Using CBD Oil

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Marie Raperto, The Hiring Hub Using CBD is a popular topic. I'm being asked if it can show up on a drug test and if you can be fired or have a job offer Using CBD is a popular topic. I'm being asked if it can show up on a drug test and if you can be fired or have a job offer rescinded for a positive result. Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case — April 28, 2022 Read our news article "Can I Be Fired for Using CBD?" For a free consultation on your case, call us.

Using CBD? Yes, You Can Be Fired

Using CBD is a popular topic. I’m being asked if it can show up on a drug test and if you can be fired or have a job offer rescinded for a positive result. According to PayScale, the answer is maybe. It’s very complicated.

First, CBD is a naturally occurring chemical compound in the cannabis sativa plant which has two primary species: marijuana and hemp. CBD can be extracted from either species. The 2018 Farm Bill legalized hemp cultivation and allowed the transportation of hemp-derived products across state lines. This bill defines hemp as those plants containing less than 0.3% of tetrahydrocannabinol or THC (the compound that causes marijuana users to get high.) Both THC and CBD interact with your body’s endocannabinoid system but have different results.

Here comes the complicated part, the Farm Bill states that hemp-derived CBD is legal “if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, state regulations and by a licensed grower.” It is illegal to market CBD by adding it to a food or labeling it as a dietary supplement according to the FDA and they have approved only one CBD product so far – a prescription drug to treat two rare forms of epilepsy.

There is an extreme lack of regulation in this area and it is rapidly changing.

While CBD is becoming mainstream, it doesn’t mean your employer will allow it. It may depend on the type of job you do or the type of employment you are seeking. Jobs in transportation and those dependent on federal funds may be more restrictive. It is really up to your employer. According to The National Law Review:

  1. Employers are generally permitted to adopt drug-free workplace policies and make employment decisions relating to recreational marijuana use by an employee.
  2. Employers are allowed to refuse to hire prospective employees for failed drug tests stemming from the purely recreational use of marijuana.
  3. Whether an employer must accommodate the use of CBD oil for medicinal purposes will vary by the jurisdiction and will depend greatly on whether the CBD oil is derived from help or majijuana.

So beware. CBD or using CBD-infused products could result in positive THC test results and it would be possible to get fired. Most employers screen for THC, current drug testing does not look for CBD. However, CBD products can contain more THC than listed on the label and that small amounts can build up in the body to detectable levels. There isn’t any uniformity in testing since each state can determine how it samples and tests help plants for THC content.

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Can an employee legally be fired for using over-the-counter CBD products?

Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case dismissed.

So, let’s talk about how and why.

According to the plaintiff’s complaint, she had a disability for which she used an over-the-counter CBD product. It appears that her doctor suggested that she use the CBD product. (It’s not clear whether the doctor prescribed CBD.)

Problems arose when the defendant randomly selected the plaintiff for a random drug test. The plaintiff took the test, at which time she learned that the over-the-counter CBD would cause a positive result. After taking the test that day, the plaintiff emailed the defendant to determine what “documentation” she needed to provide regarding her CBD use. The defendant did not respond.

Sure enough, the plaintiff’s drug test came back positive for THC the next day, and the defendant fired her immediately for illegal drug use. The plaintiff then sued for disability discrimination under the Americans with Disabilities Act.

Now, here’s the thing with the ADA. It does not protect employees from the illegal use of drugs. (CBD products may contain THC).

The ADA does protect CBD users from discrimination based on any underlying disability. But here’s the rub. Suppose the employer doesn’t know any underlying disability. Then, a firing after a positive drug test can’t result in a viable ADA claim.

In this case, the defendant did not know that the plaintiff had a disability — at least not until after the defendant got the test results. Maybe, it never knew.

Plus, the defendant had a good drug test policy. The policy stated that any employee taking prescription or over-the-counter drugs that could be considered “illegal” must provide advance documentation identifying the medication and dosage. Otherwise, the company would deem the drug “illegal,” and “failure to report the use of such drugs to HR may result in disciplinary action, up to and including termination.”

The plaintiff claimed to have used CBD for a while before her random drug screen. But she did not inform the defendant before her drug test. Instead, she provided a doctor’s note post-test. Had the plaintiff followed the policy, the defendant might have given her a pass on the negative results. Instead, when the plaintiff tested positive for illegal drugs (THC), the defendant had no reason to believe she used legally prescribed drugs.

Of course, your mileage may vary depending on the state/city in which you operate and the unique facts and circumstances surrounding a positive drug test involving CBD. But, in many instances, you can fire someone simply because they test positive for marijuana.

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(That said, unless you operate in an industry that requires drug testing, why bother? But that’s a post for another day.)

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Can I Be Fired for Using CBD?

Despite being relatively risk-free, government entities only recently began legalizing CBD. In the last few years, CBD products have increased in popularity and are available in a variety of forms, including oils, gummy candies, tinctures, and lotions.

CBD products are legal in New York. What should you know about how its use affects your job? Can you be terminated for using CBD?

Here’s what you need to know.

New York is a CBD-Friendly State

New York is one of the CBD-friendliest states in the country. Many different CBD products are for sale throughout the state and residents are free to buy products in-store and online. Keep in mind, not all of the products are equally high in quality. This means it’s important to do your research and buy from reputable retailers.

Despite CBD use being legal in New York, employers might still be able to discipline employees for using these products. This is why it’s so important to understand the CBD market and make informed choices about the products you’re using.

Whether or not employers must not discriminate based on the use of medical marijuana varies from location to location. New York State legalized adult marijuana use, both medical and recreational, in March of this year via The Marijuana Regulation & Taxation Act (MRTA). The use of medical marijuana was already legal in the state.

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What about Medical Marijuana?

As of 2020, 19 states including New York have enacted laws prohibiting discrimination against patients for using medical marijuana. This means most employees can’t be fired for using or testing positive for marijuana as long as they are using it for medical purposes.

This doesn’t mean you’re protected against discipline in all cases though when it comes to marijuana use. You can be fired if you use marijuana during work hours or you’re otherwise impaired during work hours by marijuana use.

It might help to think of CBD products as you would alcohol when it comes to workplace use. Like CBD, alcohol is perfectly legal for people over the age of 21 to consume, but if you’re drinking on the job or you come to work under the influence of alcohol, your employer could choose to discipline you.

Also, keep in mind, employers are free to adopt a drug-free work environment. They can refuse to hire someone who fails a drug test due to the use of marijuana or terminate someone using marijuana recreationally. There’s a good chance this will change in the coming years as recreational marijuana use becomes more mainstream. Many want the laws protecting employees from discrimination based on their use of “lawful products” while off duty extended to include marijuana uses and that’s likely to happen first in states like New York.

Your Likelihood of Termination for CBD and Marijuana Use is Lower Than Ever

Chances are, using CBD products isn’t going to cost you your job in New York. But that doesn’t mean you shouldn’t research the products you’re using, nor should you assume your job is automatically safe when using THC-containing products.

The use of CBD products could result in a positive drug test. Employers aren’t screening for cannabidiol, but many screen for THC – the psychoactive ingredient in marijuana.

And while many CBD products do not contain any THC, some do. This is why it’s so important to research CBD distributors and use products that you trust. If you are concerned about your CBD use affecting your employment status, you need to be sure you aren’t using a product that could trigger a positive drug test result. If you ingest THC, knowingly or unknowingly, it could show up on a drug test and it could be grounds for termination.

Did your employer discipline you for CBD use? Do you have questions about the medical or recreational use of marijuana and how it affects your job? We can help. Contact Borrelli & Associates, P.L.L.C. to schedule a free consultation.

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