- July 16, 2019
- Posted by: Andrew D. Easler
- Category: Drug Testing News
Laws and their interpretations regarding cannabidiol (CBD) and marijuana in the workplace are still emerging through statutes and case law across the United States. While there is a federal law protecting employees from discrimination based on their medical conditions and their resulting prescriptions (Americans with Disabilities Act), the ADA has not yet been interpreted federally as protecting marijuana-related prescriptions, partly because the Food and Drug Administration (FDA) has only ever approved two cannabis-related medications and those are only available for the treatment of serious conditions which would likely prohibit an employee from working in a safety-sensitive function. In the absence of such a ruling, each state is free to set their own laws through legislation and court decisions. Since every state is different, the answer to whether an employee can be fired for CBD use will also vary from state to state and potentially from year to year as laws change, research emerges, and products are released.
This query asks a simple question with a myriad of possible answers dependent upon the jurisdiction and the facts of the situation. Unless otherwise indicated, the scenarios discussed below are hypotheticals based on the use of “legal” CBD which has not been mislabeled (synthetic marijuana, known as K2 or Spice, labeled as CBD) or processed incorrectly (processed with greater than 0.3% of tetrahydrocannabinol, or THC). Limited regulation on the production of CBD products has resulted in reported poisoning of individuals who have ingested synthetic marijuana (K2/Spice) or positive drug tests of individuals who have ingested products labeled as CBD with high concentrations of THC. This article also assumes the validity of drug tests for THC.
SCENARIO 1: POSITIVE PRE-EMPLOYMENT TEST IN NEW YORK CITY OR NEVADA
Can an employee be refused employment for testing positive for THC in a pre-employment drug test? In Nevada and New York City, the easy answer would be “no” if the employee were applying for a job in 2020 after each of these jurisdictions’ marijuana non-discrimination laws take effect. Once in effect, as long as the employee was not part of a federally-mandated program or in a safety-sensitive position as defined by either law, the employer cannot refuse to hire an employee based on a positive test for any marijuana compound—psychoactive Tetrahydrocannabinol (THC) or non-psychoactive Cannabidiol (CBD).
SCENARIO 2: TYPICAL AND LAWFUL USE OF CBD
That very narrow scenario aside, the next scenario is one in which an employee takes a common dose of hemp-derived CBD (120-160 milligrams per day) purchased from a legitimate dispensary and manufactured properly by an appropriately licensed facility. In this scenario, the CBD product taken by the employee will contain no more than 0.3% THC (the legal limit to be sold in the US) and will not be detected by a standard drug screen which will be looking for a specific cut-off level of the compound THC rather than the compound CBD. If the employee passes the drug screen and does not inform the employer of her CBD use, then there may not ever be an employment issue at all.
SCENARIO 3: EMPLOYEE INFORMS EMPLOYER OR TESTS POSITIVE
In the next scenario, that same employee admits to using CBD or the employer tests specifically for CBD and she fails the drug test. Can an employer fire or refuse to hire an employee because of this CBD use? Both Marijuana and THC appear on the United States Drug Enforcement Agency’s Controlled Substance Schedule; however, the Drug Enforcement Agency’s Diversion Control Division clarified their stance on marijuana extracts after the 2018 Farm Bill which effectively legalized industrial hemp. The Bill redefined marijuana under the Controlled Substances Act to exclude hemp, defined as cannabis and cannabis derivatives with very low concentrations (no more than 0.3% on a dry weight basis) of THC. That means a validly processed CBD extract containing only trace amounts of THC is not illicit under federal law. Most states have enacted legislation which bars employers from firing or refusing to hire an employee for his or her lawful activities outside of work. Therefore, an action firing an employee for the use of legal CBD outside of work hours and off premises simply because the employer wrongfully believed CBD to be an illicit substance would likely fail if challenged in a wrongful termination suit.
Note, however, that this kind of legislation worked against a medical marijuana-using employee suing his employer over wrongful termination in Colorado, where even recreational marijuana is legal. In Coats v. Dish Network the Colorado Supreme Court held that the term “lawful” under state statute meant lawful under federal or state law rather than just state law. Since the employee’s use of marijuana was unlawful under federal law, the Colorado Supreme Court found that his employer was not violating the statute by firing him for unlawful activity and therefore his wrongful termination case was dismissed.
SCENARIO 5: THE SAFETY-SENSITIVE EMPLOYEE ADMITTING TO CBD USE
In this scenario, a safety-sensitive employee covered under federal regulations admits to CBD use. Can she be fired for using CBD? Since the employee is in a safety-sensitive position, arguments could be made for the employer that it has a legitimate interest in disallowing the use of even CBD extract for its potentially endangering side effects such as drowsiness. If the employee in this scenario is a trucker, for example, the employer might argue that CBD products risk her falling asleep at the wheel and endangering the employee, the rig, its load, and the public at large. However, the employee could argue that (i) the consensus in the courts and the legislature is that the employee should receive notice of any prohibited substance in advance of any adverse action against her, and (ii) drowsy side effects are present in hundreds of other over the counter medications and supplements, many of which, like most CBD products, do not have a label warning against the operation of heavy machinery. Until the FDA and state agencies take more aggressive stances on CBD products, their labeling, and warnings, the employee is likely to prevail in a wrongful termination suit if fired for simply admitting to the use of a legal CBD.
SCENARIO 6: THE SAFETY-SENSITIVE EMPLOYEE TESTING POSITIVE FOR THC AFTER CBD USE
In this scenario, a train engineer (a safety-sensitive employee covered under federal regulations) uses legal CBD products on a daily basis to treat anxiety (a common usage of CBD as a supplement, but a consumer claim not evaluated by the FDA) as recommended by his physician. Instead of a standard dose of CBD (120-160 mg/day), the engineer finds that three doses of 350 mg daily are appropriate to treat his condition (totaling over 1,000 mg daily). If the CBD product contained the maximum legal concentration of THC (0.3%), then the engineer would be ingesting 3 mg of THC a day. Span this consumption over a 30-day period and he will have consumed 90 mg of THC. THC can be stored in the body including in fat tissue for extended periods of time, particularly in the tissue of chronic users, and will be slowly released over time. This means that, even though THC is metabolized differently for each person, after the 30-day period, the engineer is extremely likely to test positive on his drug test for THC. The question then arises, if the product ingested is technically “legal” for consumption, but it results in a positive drug test when consumed in large doses, can an employer take adverse action against him? Under a federal drug testing program, “[c]ompounds or substances that have not been approved by FDA cannot be used as a legitimate medical explanation.” In 2018, the FDA approved Epidiolex with serious safety concerns for the treatment of seizures associated with Lennox-Gastaut syndrome and Dravet syndrome. An individual who suffers from these syndromes will be barred from safety-sensitive positions under a federally-mandated program. This means that until the FDA grants approval for other CBD products, any employee under a federal program testing positive for THC will be subject to adverse action regardless of whether it was a result of legal CBD use.
SCENARIO 7: THE INNOCENT EMPLOYEE
A troubling scenario is one in which an employee takes a CBD product and is unaware that its THC concentration exceeds the legal limit (as it was mislabeled or improperly processed). Can an employee be fired for testing positive for THC as a result of a mislabeled CBD product? Even at a common dosage, if the facility manufacturing the CBD product exceeds the maximum trace amounts of THC then the employee is at risk of failing a drug test. In this scenario, the innocent employee has no first-hand knowledge that the CBD product is illicit, no knowledge that the THC she is ingesting will exceed the cutoff levels, and has no reason to believe that she may be in violation of the employer’s drug-free workplace policy. However, in the eyes of the employer, it has validly established a drug-free workplace policy that it must abide by. The policy will likely explicitly forbid the use of marijuana and have consequences that may include termination for admitting to the use of or testing positive for marijuana or its metabolites. The employer has no method of determining whether the positive drug test result was caused by illicit marijuana use or accidental ingestion. Absent any clear evidence to the contrary, the employer is likely well within its rights to terminate that employee. This scenario has been reported by several individuals across the country who have been fired for positive drug screens as a result of CBD use.
WHAT EMPLOYERS CAN DO
Reading this article is step one. Continue to educate yourself about cannabis and cannabis-related workplace testing laws. Share what you learn with your employees and reinforce your existing policy on drugs in the workplace, who to contact if they have a problem, and the consequences for violating your policy. A good next step is to consider taking online training courses for drug and alcohol free workplace program managers.
WHAT EMPLOYEES CAN DO
Ideally, avoid consuming any cannabis products unless they are approved by the FDA and you have consulted your doctor first. Learn everything you can about any product you plan to take including the side effects and recommended dosages. Read your employer’s drug-free workplace policy carefully and ask questions on anything you are unsure about. Consider taking an employee drug awareness course.
 THC can remain in the body for days or even weeks after the psychoactive effects have subsided. As a result, there is legal debate over the validity of testing for THC in the workplace as a positive THC drug test may not conclusively indicate that the individual was under the influence of the drug while at work.
 For example, under US DOT regulations that concentration is 50 ng/mL in urine.
 Note that some manufacturers are now selling drug screens which specifically detect CBD.
 Derived from hemp, rather than Marijuana and all precautions are taken to avoid THC concentrations exceeding the legal limit.
 FDA Comment Period on Scientific Data to evaluate cannabis-derived compounds ends July 16, 2019. https://www.federalregister.gov/documents/2019/06/20/2019-13122/scientific-data-and-information-about-products-containing-cannabis-or-cannabis-derived-compounds
 Most individuals taking this amount would feel extremely uncomfortable at this dosage and would almost certainly experience the effects of an overdose including extreme drowsiness and a mental fog.
 One such reported example is Rose Maexy of Indianapolis, Indiana https://abc13.com/health/cbd-caused-drug-test-failure-woman-says/5299239/