Kyle Abraham, BridgeTower Media Newswires
Cannabidiol (CBD) products may be the “magic elixir” of our day. Recently, CBD has been touted as a natural remedy for seemingly every ailment, including various kinds of pain, anxiety and insomnia. CBD also has been labeled an antidepressant and antidiabetic. While the science is still out on many of these claims, it is irrefutable that CBD’s popularity has exploded and its use has grown through nearly all demographics.
A survey conducted in January 2019 by Consumer Reports found that 26 percent of Americans have tried CBD at least once in the past two years, and one out of seven of those individuals are using it every day. With so many Americans trying CBD products to cure what ails them, employers should expect regular users to be among their employees. This is especially true for employers in the construction industry, because its employees are more prone to joint and back pain, which is one of the most popular ailments that advertisers of CBD products target. CBD use by employees brings its own set of issues and complications that employers should be aware of.
CBD is a non-intoxicating compound found in marijuana and hemp. This is not to be confused with tetrahydrocannabinol (THC), which is the psychoactive compound found in marijuana associated with the “high” felt by marijuana users. CBD is generally not mind-altering and has very little effect on the body’s receptors that interact with THC to produce the marijuana “high.” CBD can be derived from hemp or marijuana. In December 2018, the federal government passed the 2018 Farm Bill, which legalized hemp and hemp-derived CBD products. Now, hemp and the products derived from it are legal nationwide as long as they contain a THC concentration less than 0.3 percent. CBD derived from marijuana is still illegal federally, but may be legal under state schemes.
CBD is commonly formulated as an oil, but it’s also sold as an extract, a vaping product, and in pill form. Additionally, products ranging from CBD-infused beverages to CBD-based skin care products are sold in retail stores and online. However, it must be noted that the vast majority of these CBD products are entirely unregulated by the Food and Drug Administration (FDA) as a “dietary supplement.”
This means that the majority of CBD products that could be used by employees are sold as dietary supplements, and they have no way of knowing exactly what else is in the product. Of particular note, a consumer has no way of knowing exactly how much THC is present in the popular hemp-derived CBD products they are consuming. Due to state regulations, CBD products derived from marijuana and sold in a dispensary are subjected to stricter testing requirements and may have more reliable and descriptive labeling.
The increased use of CBD products begs the question: What does the use of CBD products mean for employer drug testing programs? The drugs commonly tested for during employment-related drug testing include THC — not CBD. However, the use of CBD products may have an impact on a drug test. As stated above, users of CBD products cannot be sure how much THC is present in hemp-derived CBD products. So, employees could inadvertently use a product containing increased levels of THC. Also, chronic use of CBD products may result in an increased level of THC in a user’s body because THC metabolites (which trigger a positive drug test in sufficient concentrations) are stored in protein cells and fat tissue, and, over time, THC metabolites build up in one’s body. Therefore, it is possible to have an employee, who believes that he or she has stayed on the right side of your drug policies and the law, test positive for THC and fail a drug test.
As a result of the increased popularity of CBD products and the unregulated nature of the market, it is prudent for employers to take a few steps. First, employers that maintain drug-testing programs should inform employees of the risks of using CBD products. Second, employers should review and consult with counsel about their substance abuse policy and determine what employee conduct is subject to discipline. For example, employers may impose discipline for a positive drug test, even in the absence of on-the-job impairment, or employers may impose discipline if there is on-the-job impairment. Employers are free to maintain a policy that does not provide an “innocent ingestion” defense for a positive drug test. Each workplace presents different circumstances, and employers are free to tailor their substance abuse policy to their individual workplaces. Finally, employers should proactively explain to employees how the use of CBD products may impact the substance abuse policy. This is especially true in a union workplace where disciplinary action must be supported by “just cause.”
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Kyle Abraham is an attorney with Barran Liebman LLP. He represents employers in traditional labor and employment law matters. Contact him at 503-276-2132 or kabraham@barran.com.
