Employers: Do you conduct drug tests on applicants or employees? What will you do if the reason for a failed result is the use of CBD? What if the person is disabled?
CBD (cannabidiol) oils and other products are advertised and sold in countless stores, from health food stores to gas stations and gyms. Accurately or not, CBD products are becoming widely known for helping with sleep, stress, pain, weight loss, and other possible benefits. Perhaps surprisingly, CBD can result in a failed drug test. Employers need to consider how to react when this happens.
This area of the law is rapidly changing, particularly at the state level, North Carolina included. However, federal law remains stable when it comes to an employer’s ability to reject an applicant or terminate an employee when a drug test shows levels of THC (tetrahydrocannabinol) high enough (pun intended) to indicate marijuana use.
CBD use is legal…right?
The federal Controlled Substances Act (CSA ) lists marijuana as a Schedule I drug. The 2018 Farm Bill removed hemp from the definition of marijuana and the CSA altogether. Hemp has THC levels of .30% or less. Marijuana has higher THC levels than hemp, enough for a psychoactive effect. Therefore, hemp-derived CBD is non-psychoactive and is not a federally controlled substance, unlike marijuana-derived CBD. The FDA has approved just one CBD product— Epidiolex, a Schedule V drug for treatment of rare forms of epilepsy.
A drug test showing THC levels at or above .30%+ indicates marijuana use. Unfortunately for unwary CBD users, many CBD products on the relatively unregulated market contain enough THC to cause a failed drug test. The Journal of the American Medical Association found that about 43% of CBD oils tested contained more THC than shown on the product’s label. Results may also be impacted by the person’s dosage and frequency of CBD use and by the type of drug test used by the employer.
Under federal law, employers can rely on the results of a drug test which indicate marijuana use when deciding whether to hire or fire, even if CBD is behind the failing result. That’s true even if the Americans with Disabilities Act (ADA ), as amended, would normally protect the person. Why? The ADA specifically excludes from its definition of a qualified individual with a disability any applicant or employee currently using an illegal drug, as defined by the CSA. So, if a drug test indicates marijuana use—notwithstanding the person’s medical explanation that s/he uses CBD to treat a disability—then federal law protects the employer’s decision to not hire or to fire the person. In fact, if the job is subject to federal Department of Transportation drug testing regulations, a medical officer reviewing a drug test must not ignore a positive marijuana result . For other jobs, the employer should consider giving the applicant or employee an opportunity to explain the test result and, if the person is disabled, starting the interactive process of assessing reasonable accommodations. North Carolina’s Persons with Disabilities Act may offer some protection to the disabled applicant or employee, unless the job would be in an establishment that handles controlled substances. Other states may offer additional or different protections, and employers should be on the lookout for developments in any state(s) where they have employees, though federal law may remain behind the times.
On Monday, August 26, 2019, the DEA confirmed that the 2018 Farm Bill took hemp and CBD products off the CSA list, but only for those products with THC levels at or under .30%. The Secretary of the United States Navy announced earlier in August that Sailors and Marines can use topical CBD products (e.g., lotions, shampoos, etc.) or prescribed cannabis-derived products (Epidiolex, Marinol, or Syndros) but that other CBD products remain prohibited regardless of THC levels.
Again, the law in this area is constantly developing, the above discussion should not be construed as legal advice, and employers should seek legal counsel for their particular situations. For employment law guidance, contact Nicole Gardner or Caleb Holloway.