For more information about CBD Oil & Its Implication on Drug Policies in the Workplace, click here or visit our site to learn more! Fired workers and frustrated employers are facing off in court battles over Pennsylvania’s vague safeguards for marijuana patients, and those on both sides are asking for a legislative fix. 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
CBD Oil & Its Implication on Drug Policies in the Workplace
Cannabidoil, or CBD, is derived from the hemp plant, a relative of the marijuana plant. CBD oil has seen a surge in popularity in the recent years among customers who use it for treating various conditions such as anxiety, insomnia and chronic pain. However, its growing popularity comes with many questions for employers.  At times, CBD oil can contain traces of THC, which is considered a controlled substance, and can result in positive drug tests. However, CBD oil by itself does not usually cause a high. CBD oil is legal in all 50 states with varying degrees of restrictions, but its legality will likely change over the coming years. There is very little guidance from the courts on whether employers should accommodate CBD use when creating their drug policy.
In Pennsylvania, an employer sought judicial review of an unemployment order that held the employee was not ineligible for unemployment compensation after the employee admitted to use of CBD oil, tested positive for marijuana and was terminated.  The employer had a policy providing that being under the influence of drugs or having drugs in one’s system while at work was ground for termination. The policy defined “drug” as “any substance producing effects on the central nervous system, or any controlled substance.” The employee disclosed she took CBD oil to manage her cancer-related symptoms before being administered the drug test. The court found the employee did not violate the drug policy because the CBD oil ingested was not a controlled substance, and the employer presented no evidence the oil ingested would affect the employee’s performance in ways prohibited by the policy.
In North Carolina, a woman was fired from her job for using an over-the-counter CBD oil after a drug test revealed THC in her system.  The woman used CBD oil to treat chronic pain from fibromyalgia, which had been cleared by her rheumatologist and disclosed to her employer.
In a lawsuit claiming wrongful termination and damages, the woman noted that the low levels of THC did not meet the threshold level of being impaired under federal Department of Transportation regulations. The lawsuit claims that due to the low amounts of THC, the woman tested negative for purposes of driving a commercial vehicle and was not impaired.  The court held that CBD oil is a legal product under North Carolina law, even if it contains small amounts of THC that would otherwise be considered a controlled substance.
Court decisions such as these create a great deal of questions for employers and their drug policies. Should employers who have a zero-tolerance drug policy accommodate employees who use CBD products? What should an employer do if an employee tests positive on a drug test and blames the use of CBD products which are legal? Does the level of THC in an employee’s system have any weight on an employer’s decision to terminate? The answer to these questions will continue to evolve as we learn more about CBD products. Like many other states, North Carolina’s laws are likely to evolve as we learn more about CBD.
While many CBD products do not contain enough THC to result in a positive drug test, CBD products are not regulated in the U.S., which means there is no way to ensure THC levels remain low in products. Employers should educate employees on this issue and carefully examine the CBD and controlled substances laws in their jurisdiction. Handling positive drug tests where an employee blames the use of a legal CBD product may need to be evaluated on a case-by-case basis. Employers should consult with their employment attorney before revising their drug policy.
 Peter Grinspoon, Cannabidiol (CBD) – What We Know and What We Don’t, Harvard Health Publishing, https://www.health.harvard.edu/blog/cannabidiol-cbd-what-we-know-and-what-we-dont-2018082414476 (last visited Sep. 30, 2020).
 Washington Health Sys. v. Unemployment Comp. Bd. of Review, 231 A.3d 79 (Pa. Commw. Ct. 2020).
 Joe Marusak, Woman Used Over-the-Counter Oil to Treat Chronic Pain. It got her Fired, Lawsuit says, The Charlotte Observer, https://www.charlotteobserver.com/article232244097.html (last visited Sep. 30, 2020).
 Smith v. Manheim Remarketing, Inc et al, No. 5:19CV00086 (W.D.N.C. Nov. 25, 2019).
About the Author
Georgia H. Malik joined the Cranfill Sumner LLP team after graduating valedictorian from North Carolina Central University School of Law in 2020. As an associate attorney in the Raleigh office, Georgia works primarily in the civil litigation section.
Workers in Pennsylvania can’t be fired for having a doctor’s approval for medical marijuana — but once they actually use it, it’s a whole different story.
Vague legal safeguards for medical marijuana users in Pennsylvania are forcing patients to choose between their job and a drug they say has changed their life, and leaving skittish employers vulnerable to lawsuits, according to a three-month Spotlight PA investigation.
While state law protects workers from being fired or denied a job just for having a doctor’s permission to use marijuana, those protections become opaque when people actually take the drug — regardless of whether they do it in their personal time.
Vague protections in Pennsylvania’s medical marijuana law create unnecessary confusion and force workers to choose between their job and a doctor-approved drug.
Employers say they have to juggle creating a safe work environment with the potential for a wrongful termination lawsuit.
More than a dozen workers have filed lawsuits alleging they were punished for being a medical marijuana patient or legally using the drug. Many have been settled before a judge could rule on the merits of the case.
Employers and workers alike have asked for greater clarity — but the legislature and governor have so far failed to explicitly outline the rights of scores of employers and workers.
“It essentially makes no sense,” Pittsburgh attorney John McCreary Jr., who represents employers, told Spotlight PA.
Some jobs are specifically regulated by state and federal drug testing rules, but most fall into a gray area that leaves the interpretation of the rules up to employers and the courts. That leads to inconsistency and what employers see as a lose-lose scenario: Either risk a wrongful termination suit, or potentially allow an unsafe work environment.
Despite widespread demands for clarity from businesses, cannabis advocates, attorneys, and at least one judge, the legislature and governor have so far failed to explicitly outline the rights of scores of workers and employers.
A review of more than a dozen state and federal lawsuits by Spotlight PA highlights the law’s ambiguity, showing the ramifications faced by legal marijuana users. Among them:
A worker at a Northumberland County distribution center was sent home and demoted after his medical marijuana card fell out of his wallet at work, his attorneys claimed in a lawsuit. They said the demotion came with a nearly 50% pay cut, leaving him no choice but to quit.
A worker from Mifflin County lost his job directing traffic after he asked for information on his company’s medical marijuana policy, a conversation in which he voluntarily revealed that he used the drug outside of work. That led the company’s president to flag his marijuana use as a “public safety issue” and issue him an ultimatum: pass a drug test or lose his job.
An Allentown company fired a warehouse worker after he tested positive for marijuana use. The company then filed a lawsuit to challenge the fired worker’s ability to collect unemployment benefits.
“Taxpaying medical marijuana cardholders are finding really no safe harbor on the job, which should be guaranteed under existing Pennsylvania law,” Todd Eachus, a member of the pro-cannabis legalization group Perfectly Normal, told lawmakers last year.
For the more than 400,000 medical marijuana patients in the state, the stakes are high. Losing a job over a positive drug test can put unemployment benefits at risk. It’s expensive and time-consuming to fight these cases in court — and the outcome is uncertain.
The lack of clarity is frustrating for employers too. More than 30 employer groups, including the Pennsylvania Chamber of Business and Industry, have urged the legislature to provide clear guidance on marijuana and workplace safety issues.
“Employers in general are not opposed to medical marijuana,” Alex Halper, director of government affairs for the chamber, told Spotlight PA. “They just want to know what the rules are when they’re hiring for safety-sensitive positions.”
The safety question is a complex one. Marijuana can impair a person’s judgment, coordination, and balance, according to a report from the National Institute on Drug Abuse. But multiple studies show that commonly used urine drug screens might indicate that someone used marijuana days or weeks ago. The tests don’t tell you whether an employee was impaired at work.
When Pennsylvania lawmakers successfully passed a medical marijuana bill in 2016, they set specific blood limits for users working in a few jobs: ones that require people to operate certain chemicals, high-voltage electricity, or any other public utility. But restrictions on other workers — such as those working at heights or in confined spaces — are more vague.
The law also allows employers to prevent workers “from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana,” a provision that can be interpreted many ways.
And while the law states that employers can’t discriminate against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana,” Spotlight PA has found that protection has significant limits.
Pennsylvania’s law doesn’t specifically address the rights of patients to use the drug when they aren’t at work, and unlike some other states, it doesn’t include protections for them if they fail a drug test but are not impaired.
“[The law] kind of gives with one hand and takes it away with the other hand,” said Judith Cassel, a Harrisburg attorney who specializes in cannabis issues. “So employers and employees are both left with a lot of ambiguity.”
Some places have found a way to reduce uncertainty. Pittsburgh’s firefighters union worked out a deal with city officials that protects medical marijuana cardholders who use the drug off duty. In Philadelphia, elected officials passed a ban on pre-employment marijuana screenings for many jobs.
And some states offer stronger protections. Laws in Arizona, Minnesota, and Delaware, for instance, say employers can’t discriminate against patients based solely on a positive drug test for marijuana metabolites or components.
But so far, Pennsylvania lawmakers haven’t done the same, and attempts to change protections have run into obstacles. The Pennsylvania Supreme Court also has not issued an opinion that specifically clarifies protections for workers.
Businesses don’t want to have to guess which positions are appropriate for medical marijuana patients and which ones are off limits, said McCreary, the Pittsburgh attorney who has represented employers in these disputes.
“They took what was a bright line rule … and they completely muddied it up in a way that nobody can really make any sense out of,” McCreary said of lawmakers.
Fights in courts
In lawsuits, medical marijuana patients said they were denied or fired from a variety of jobs: forklift operator, welder, medical assistant, construction worker, emergency medical technician, and customer service representative.
Workers described how medical marijuana helped them deal with post-traumatic stress disorder, anxiety, and other conditions. In some cases, employees alleged they were punished without even undergoing a drug test.
In February 2021, a Weis Markets distribution center in Northumberland County sent employee Blake Longenecker home for five days after his medical marijuana card fell out of his wallet at work, according to his lawsuit. His attorneys wrote that Longenecker selected products from the warehouse and helped load them onto trucks, a job that paid $22 an hour. He was demoted from that job to one that paid almost half, according to the lawsuit.
Longenecker asked if he could keep his old job if he took a drug test and the results came back negative, but a human resource manager denied the request, his attorneys claimed.
Attorneys for Weis Markets acknowledged that Longenecker was sent home after his medical marijuana card was found at the facility, but the company denied discriminating against him. They said he was told he could return to work “in a position that would not require him to operate power equipment.”
The Longenecker case ended earlier this year later after the two sides privately resolved the lawsuit and asked a judge to dismiss the case. That’s a fairly common outcome, as many cases Spotlight PA reviewed were withdrawn before a judge ruled on the merits of the case.
A spokesperson for Weis and an attorney who represented Longenecker declined to comment for this story.
A dispute over federal rules
Marijuana is still illegal at the federal level, which can create additional complications for some industries. The U.S. Department of Transportation, for instance, says pilots, school bus drivers, truck drivers, train engineers, ship captains — all deemed “safety-sensitive” employees — fall under its drug testing requirements and can’t use the drug.
Those federal drug testing rules led to problems for Todd Douglas, a medical marijuana patient and Philadelphia Gas Works employee.
Gas pipeline operators determine which of their employees are required to complete federally mandated drug testing for pipeline workers. Philadelphia Gas Works included Douglas, but he said he primarily works on a computer. He’s a drafter who creates construction drawings for the pipes that connect gas to people’s homes and businesses. He doesn’t work on live gas, has never used marijuana at work, and has never shown up to work high, he told Spotlight PA.
After a random drug test in November indicated he had used marijuana, Douglas said the company reassigned him and forced him to attend outpatient addiction treatment therapy. But he didn’t want to stop using marijuana.
Federal drug testing rules led to problems for Todd Douglas, a medical marijuana patient and Philadelphia Gas Works employee. But he didn’t want to stop using cannabis to treat his pain. (Steven M. Falk of The Philadelphia Inquirer)
“It helps with pain. But it also helps me feel better about the fact that I have pain,” Douglas told Spotlight PA. “It’s helped with depression. It improves my mood.”
He pushed back, and a federal oversight agency under the Department of Transportation later ruled in his favor. People in Douglas’ role should not be required to participate in their federally-mandated drug testing, the agency said. The department’s safety rules are meant for people who work “on a pipeline,” not employees who do design work, the agency wrote.
Philadelphia Gas Works in June agreed to return him to “full duty,” remove all discipline in connection with his November drug test, and pay $375 to an addiction treatment provider for his outstanding bill, according to copies of the settlement obtained by Spotlight PA.
Douglas is happy to be back in his regular job doing work he enjoys. Still, he worries the company could find another reason to drug test him. The federal agency’s May interpretation noted that its rules don’t ban employers from creating their own process to drug test people in his position.
“I feel like I have a target on my back,” Douglas told Spotlight PA in June.
A spokesperson for Philadelphia Gas Works wouldn’t answer questions about Douglas’ situation — or broader questions about its drug testing policies.
“PGW’s first responsibility is always the safety of our employees, customers, and communities across the City of Philadelphia and ensuring safety throughout all our operations,” spokesperson Richard Barnes said in an email.
Asking for clarity
Attorneys in a Lancaster County case recently asked Pennsylvania Superior Court judges to provide guidance on what it takes to win a wrongful termination lawsuit under the state’s medical marijuana law — and specifically what protections employees have if they exclusively use marijuana “on an off-duty basis.”
That case centers on Joseph Clark Jr., who worked for JRK Enterprises as a flagger, directing traffic at construction sites. He started working for the company in 2013, and an email exchange included as an exhibit in the case shows how he lost his job.
Marijuana, testing and impairment
How long is marijuana use detectable in a drug test?
It varies. Mayo Clinic Laboratories estimates that urine drug tests, the most common type, will detect marijuana use for about three to 30 days, depending on how frequently the person used cannabis.
How long are people impaired from cannabis?
That varies, too, but studies related to driving and cognition have shown that occasional recreational users “return to a generally nonimpaired state within 3 to 6 hours after smoking marijuana,” according to a 2015 report from two occupational health groups.
Is there a standard definition of impairment for cannabis?
No. Pennsylvania’s medical marijuana law doesn’t define impairment. Often this term is used in the context of drivers who pose a safety risk.
“The nationally recognized level of impairment for drunken driving is .08 g/mL blood alcohol concentration,” according to the National Conference of State Legislatures. “But there is no similar national standard for drugged driving.”
In August 2020, Clark sent an email to the owner and president of the company, Shannon Snare, asking about the workplace policy for medical marijuana.
“I just don’t know what our policy is on it and what would happen if I was sent out for a urine,” Clark wrote, referring to a drug test and adding that he didn’t want “anyone to be caught off guard with this.”
Snare told him she was checking with her attorney and would get back to him.
“Unfortunately, we cannot allow you to flag for us,” Snare wrote the next day.
He’d have to quit using marijuana and pass a drug test if he wanted to continue flagging, she explained. Clark told her he used marijuana to treat a medical condition and planned to continue doing so. Snare replied that she appreciated his honesty, respected “the years and hard work” he gave the company, and believed him when he said he didn’t use the drug on the job.
“However, you will not be able to continue to work for us while using marijuana, even though it is prescription,” Snare wrote. “I am sorry but as of now, you no longer work for us.”
Clark later found a job at another business. But he told Spotlight PA in July that uncertainty over workplace policies on marijuana limited his options. Clark said he asked potential employers if using marijuana would affect his hiring and was told it would.
“My confidence is still shattered,” Clark said in an interview. “I felt that we were protected. And it seems like we’re not. …We shouldn’t be limited. We still have the right to earn a living.”
Clark filed a wrongful termination lawsuit in the Lancaster County Court of Common Pleas, where the two sides have sparred over federal requirements and safety issues.
Clark’s counsel claimed he never used marijuana on the job, never worked impaired or under the influence, and never consumed marijuana within eight hours of the start of a shift.
Meanwhile, attorneys for JRK Enterprises argued that he would expose the company to legal risks if an accident occurred.
“Employers cannot both be held accountable for maintaining a safe workplace and be unable to discharge employees for marijuana use,” they wrote in court filings.
In late August, Pennsylvania Superior Court declined to weigh in on the case, and it is continuing in Lancaster County’s court system.
Unemployment benefits denied
After employees lose their job, they can run into other problems.
Robert Moyer was a warehouse worker for Jack Lehr Electric in Lehigh County, earning $16.50 an hour, until February 2020, when he was fired because a drug test came back positive for marijuana use, according to unemployment board records. Moyer said he had a medical marijuana card at the time.
“I felt betrayed,” he told Spotlight PA.
When Moyer applied for unemployment benefits, the Department of Labor and Industry denied his application and so did an appeals officer. The unemployment board later ruled in his favor, saying that the “bare test results do not disclose how recently the claimant may have ingested marijuana before reporting to work or that his work performance somehow was impaired on the day of the test.”
Medical Marijuana in PA, By the numbers
$3.4 billion in sales by dispensaries
414,446 active patient certifications
1,830 approved practitioners
23 qualifying conditions
But the fight still wasn’t over.
His former employer sued the unemployment board in Commonwealth Court, arguing that Moyer shouldn’t be eligible because he violated the company’s drug policy and his marijuana use created a safety risk. In court filings, attorneys for the unemployment board disputed both claims and argued “there is no credible evidence that Claimant’s use of medical marijuana created a safety hazard for anyone.”
In June 2021, Commonwealth Court ruled in Moyer’s favor, a victory in a battle he thinks he shouldn’t have had to fight in the first place. Pennsylvania law, he said, should offer more protections so medical marijuana patients aren’t fired.
“It should be more clear,” Moyer told Spotlight PA. “A lot of people don’t know. … They think they have a card and they are protected, like I did.”
Jack Lehr Electric declined to comment for this story, through an attorney. A spokesperson for the Department of Labor and Industry said the agency doesn’t have statistics for the number of people initially denied benefits in cases similar to Moyer’s.
Pennsylvania’s Department of Health oversees the state’s medical marijuana program, but an agency spokesperson said the law does not give it “broad oversight of enforcement of employee protections,” adding that changes to the law would require legislative action.
While Pennsylvania lawmakers haven’t changed protections for workers, some employers and local governments have adjusted their own policies.
The number of urine drug screens in Pennsylvania that included marijuana dropped from nearly 99% in 2017 to 88% in 2021, according to workforce data from Quest Diagnostics. This excludes testing of employees in positions with federal drug-testing requirements.
Some states have expanded protections for workers who use marijuana on their own time. Here are a few examples:
Arizona, Minnesota, and Delaware say employers can’t punish patients based on a positive drug test for marijuana unless they used, possessed, or were impaired at work or on duty.
New York employers can’t use drug tests as a basis for determining impairment from cannabis and the state bans cannabis drug tests for many employees.
New Jersey’s acting attorney general sent a memo to law enforcement agencies, telling them state law allows police officers to use cannabis off duty.
All of those laws include exceptions if federal laws or rules require drug testing.
In 2018, Pittsburgh firefighters worked out an agreement with city officials that created specific protections for medical marijuana cardholders who use the drug off duty.
“When we sat down with city officials to talk about this … they said, ‘We don’t want firefighters coming to work high,’” Tim Leech, a firefighter and vice president of the local union, told Spotlight PA. “And we said, ‘Well, this is going to be easy because neither do we.”
Firefighters are still subject to random drug tests, but cardholders aren’t disciplined if they test positive for marijuana, according to the agreement. They can be punished if they show up to work impaired — similar to the process for other drugs, according to Leech and a city spokesperson.
Other firefighters have told Leech they’re drinking less alcohol, or they’ve switched from federally approved prescription drugs, such as opioids, to medical marijuana because they feel it’s safer and less addictive. He said several of the conditions that qualify people for medical marijuana — cancer, anxiety, post-traumatic stress disorder, and severe chronic pain — are conditions that “firefighters get as a result of things that happen on the job.”
“I have had firefighters tell me that it’s changed their life dramatically,” Leech said. “Being able to have this safe, effective treatment I think has actually made them better firefighters and made our job safer.”
In Harrisburg, negotiations over employment protections have been “lengthy and challenging,” state Sen. Michele Brooks (R., Mercer) said during a committee hearing earlier this year.
State Sen. Bob Mensch (R., Montgomery) introduced legislation in June 2021 that would specifically allow employers to place marijuana restrictions on people who work in several newly defined safety-sensitive positions, including anyone performing firefighting duties, dispensing pharmaceuticals, caring for a patient or child, or operating a motor vehicle. A urine drug test would be the primary tool for determining if those workers were under the influence of marijuana.
The Pennsylvania Cannabis Coalition, Pittsburgh’s firefighter union, and a statewide trial lawyers association opposed the bill and wrote that creating “workplace standards must be done carefully to ensure that patients are not deterred from seeking treatment out of fear of reprisal.”
A wide range of employer groups — representing everything from construction businesses to child care centers to restaurants — urged lawmakers to pass the bill in an April memo, writing that “employers should not be inhibited from maintaining reasonable workplace safety policies to protect their people, customers and the public.”
Mensch said he later amended the bill to focus on impaired workers in safety-sensitive roles, a change that would make it “much more workable.”
Still, Democrats on the committee raised concerns about how employers would judge impairment. State Sen. Judy Schwank (D., Berks) said the measure “could be especially burdensome to someone who’s using medical marijuana for all the right reasons.”
The bill passed out of committee on a party-line vote with all Republicans in favor. Still, the future of the legislation is unclear.
For now, attorneys like McCreary in Pittsburgh are keeping an eye on court cases, looking at how judges rule.
A Pennsylvania Supreme Court decision could offer clarity, but McCreary said “the best way to resolve the issue is for the legislature to tell us what it meant.”
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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.
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.