In fact, recent projections suggest that by 2026 the CBD market size will grow by 126%. That said, CBD’s complicated legal status due to conflicting federal and state regulations, can leave some CBD users in sticky situations—particularly if they take CBD while on the job and fail an employer’s drug test.
For instance, in March 2020, reports came out about Melanie Farr, a in San Antonio, TX who was fired after taking CBD to treat her multiple sclerosis (MS) and failing her workplace drug test. Farr was fired even though her boss previously knew she was taking the cannabinoid.
“We discussed it many, many times,” Farr told the San Antonio Express. “I worked there a long time taking it. I’m a counselor. That’s what I do. So if I was high, somebody would have said something. It was clear I wasn’t high.”
Farr’s situation, and others like it around the U.S., have left many employees who deal with medical issues commonly treated with CBD—like MS, or anxiety and chronic pain—unsure if they should tell their supervisors that they use the drug, hide their CBD use, or stop taking something that may be boosting their quality of life.
Unfortunately, there isn’t a clear answer when it comes to that decision. The right choice for an employee is dependent on the type of CBD they take, state law and company policy, and an employee’s reason for using CBD.
While pure CBD is non-intoxicating, full-spectrum CBD products contain trace amounts of THC, the psychoactive cannabinoid associated with a “high” feeling. This is legal as long as the THC content does not exceed 0.3%, and in fact, it can positively impact the effect of CBD on more severe medical issues.
This is because full-spectrum CBD, which is not processed to remove THC and other terpenes, flavonoids, and plant matter naturally occurring in cannabis plant like broad-spectrum CBD and CBD isolate, can create the entourage effect.
“The entourage effect can be defined as the process by which various cannabis compounds work in synergy to boost each other’s health benefits and potency,” reports this article from Indiana University.
And yet, even “trace amounts” of THC may have professional ramifications for a consumer.
As Grace Kroner, a fellow in the clinical chemistry program at the University of Utah School of Medicine told the San Antonio Express: “Depending on the particular CBD product, Kroner said taking it over time can lead to a build-up of THC in the body. That, in turn, could cause positive results on different types of drug tests, she said.”
What’s more, due to the fact that the CBD market is largely unregulated, the FDA reports a large portion of the products on the market are incorrectly or misleadingly labeled. In other words, even if a consumer attempts to avoid a CBD product with THC—they could still ingest THC and to fail a workplace drug test.
Along with the type of CBD you take, there are other considerations to look at when contemplating whether or not to take CBD at work and to tell your supervisor about it—the laws in the state you live in and the drug policies at your company.
Every state has different policies on cannabis and how it should be treated by employers. Some states require certain employers to routinely test employees for cannabis, while others don’t. Some companies have strict no tolerance policies when it comes to cannabis, while others have looser policies when it comes to medical use. Most typically, companies ban the use of any cannabis product, including CBD, at work because of the workplace safety liability it may pose. As well, CBD that is contaminated with THC is a rampant problem throughout the market—and another reason many companies defer to this blanket ban.
“For employers, a key issue involving marijuana is not legalization but workplace safety,” said Matt C. Pinsker, who is also a criminal defense attorney told Business News Daily. “Unlike alcohol, it is very difficult for employers to determine if a positive drug test for marijuana is the result of drug usage during work or on nonwork hours, so it is logistically simpler to just have an outright ban.”
For this reason, company policy on the consequences of cannabis use may be more strict than state or federal law. If a workplace drug test discovers THC in your system, even if you though that you were taking a low-THC or THC-free CBD product, that may be grounds to fire you. This is particularly true if you work a government job, operate heavy machinery, or live in a place where cannabis is still illegal under state law and supervisor attitudes are likely to be less accommodating.
“A certain amount of THC is allowed in CBD products as long as it doesn’t exceed limits set by federal or state law. But it could still trigger positive results on a drug test, which an employer may say is unacceptable,” reports USA Today.
Conversely, because THC lingers in the body and present cannabis testing cannot accurately pinpoint when THC initially was consumed, some more lenient employers have even removed cannabis completely from their drug screenings.
If you’re considering telling your company about your CBD use, get to know the cannabis laws in your state—but also study our company’s drug policy intimately to gauge where they may draw the final line.
While you’d be hard-pressed to find any company that sanctions the recreational use of cannabis products while at work, if the employee can prove the medical need for CBD, there is debate that the use may be protected by the Americans with Disabilities Act (ADA).
According to SHRM, “The Americans with Disabilities Act (ADA) and related state laws require employers to enter into discussions with workers with disabilities to determine if reasonable accommodations can be provided so such workers can perform the essential functions of their job.”
Depending on how that excerpt is interpreted by a judge, it may or may not protect you against being fired due to a THC-positive drug test. In fact, in the past, there were several cases around this issue and some have ruled in favor of the employer.
As SHRM reported about one such case, “The Oregon Supreme Court…determined that the employee was not considered “disabled” under state law because he could counteract his medical issues with prescription medication. Since the employee was not considered “disabled” in this context, the court determined that the employer had no statutory duty to accommodate him.”
But, more recently, some of these cases have been ruled in favor of the employee, especially as attitudes around cannabis evolve. For instance, in one recent case in Massachusetts, “the court held that an exception to the employer’s drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee’s physician determines that marijuana is the most effective treatment for the employee’s disability and that any alternative medication permitted by the employer’s drug policy would be less effective.”
While opinions around cannabis are evolving, there is still no law that requires employers to accommodate CBD use in the workplace, even for medical purposes. As well, job applicants or new hires who test positive for THC can be denied employment or fired, depending on that workplace’s policy.
Hence, consuming CBD while at work poses professional risks—even if an employee studies their state’s laws, company’s policies, rights under the ADA, and is transparent about it with their supervisors. Therefore, the most common legal advice on this subject is to avoid using CBD while working if at all possible, or else triple check the quality of your CBD product to be sure THC-free.
“The responsibility still falls on the employee to ensure compliance with an employer policy. Employees should consider the quality of any CBD product and ensure it is under 0.3% THC,” according to law firm, Davis and Keulthau. “Last, employers should be aware that it is possible they will see requests for CBD products at work as an accommodation in the workplace. Employers are reminded to review any accommodation requests on a case-by-case basis.”
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