CBD Oil: What Employers Should Know- 19 Sep
CBD oil has been rapidly growing in popularity across the country as a cure-all for everything from headaches to anxiety to cancer. CBD or cannabidiol is generally believed to the be active “medical” ingredient in cannabis and is one of over 500 chemicals found in the drug.
Along with CBD oil’s newfound popularity, however, a new onslaught of legal and best practice questions have emerged for employers.
Will CBD products impair my employees or endanger my workplace? If an employee or applicant tests positive on a drug test and blames it on CBD, what should we do? Should we allow CBD products in a zero-tolerance workplace?
Understanding CBD and THC
Before diving into these questions, it’s important to understand the different kinds of CBD products there are on the market and how THC may play a role in them.
THC is the main psychoactive ingredient in cannabis and what causes most of the mind-altering or “high” effects of the plant. It is also usually present to a small degree in most CBD products. The amount of THC in CBD products can vary based on the manufacturer, product, and what variety of cannabis the CBD was derived from.
CBD can be extracted from both hemp and marijuana. Hemp and marijuana are both varieties of the cannabis plant. However, hemp is a variety that contains considerably less THC concentration than the marijuana strain—usually less than 0.3 percent.
Recent federal legislation has removed hemp and hemp-derived products (including CBD) from Schedule I of the Controlled Substances Act. This means that hemp and hemp-derived products are no longer considered to have “no.. accepted medical use and high potential for abuse” by the federal government. A 2015 NIH paper also said that although much about the CBD is still unknown, they believed that CBD use wouldn’t impair employees.
That being said, some CBD products are derived from marijuana (instead of hemp) and have higher levels of THC. Additionally, a study was performed in 2017 and found that nearly seven in ten CBD products do not contain the amount of THC advertised—meaning that users can be getting more than they bargained for. CBD products are not regulated, so as a user it can be hard to find assurance that your product is exactly what you believe it to be.
Current State Legislation on CBD
Fourteen states currently have a legalized CBD oil program with most of those programs requiring that the CBD be extracted from hemp and contain less than 1% THC.
Below is a chart that outlines the current states with CBD oil programs. This chart was shared in OraSure Technologies’ newsletter What’s the Buzz – you can find more in that article here.
Employment And CBD
So what can you do as an employer?
The Society for Human Resource Management (SHRM) recently discussed some of the complications that cannabis oil presents for drug testing.
“If an employee is taking CBD or cannabis oil… in accordance with a state’s medical marijuana laws, there may be some state law protections for the employee. Otherwise, employers with zero-tolerance drug policies are free to discipline employees for failing drug testing, even if the ingestion of THC was inadvertent.”
You probably won’t be able to tell whether a positive test for THC was caused by the use of CBD or cannabis oil rather than marijuana use. However, you can look for other signs of impairment such as red eyes and delayed reaction times and make sure that your supervisors are trained to recognize and handle drug impairment symptoms. If someone does test positive for THC, it may be best practice to have a conversation with that person first to see if they have a reason for the positive test.
Ultimately, most of the decisions are up to you as the employer. Whether or not you decide to take adverse employment action should depend on the applicable state laws and the nature of the individual’s job. Disciplinary action for a positive THC test, even if it were due to the use of cannabis oil, are likely to be justified if it is a federal or safety-sensitive position.