Weed? CBD? New products, new laws are causing confusion in the workplace
CBD has exploded in popularity since Trump legalized the cultivation of hemp, but is it a medical miracle or just another fad? USA TODAY
From makeup and oils to capsules for stress relief, cannabis-based goods are flowing into the marketplace. But while they may not get you high, they can still cause you problems at work.
Cannabidiol or CBD has been showing up in a widening array of goods. That’s because federal legislation in 2018 deemed that hemp – one of its sources – was not an illegal controlled substance.
But your job could be in jeopardy if one of those products, which are largely unregulated, contains THC, the same compound that causes marijuana users to get high.
Employers are now grappling with CBD use by their employees, while also dealing with the rising legalization of recreational and medical marijuana in states across the country.
It’s not clear how many American workers have been disciplined or fired because they tested positive for THC after using CBD products, but there have been instances and it’s a problem that could grow.
Jeanette Hales, a 58-year-old former school bus driver in Salt Lake County, Utah, is one of those cases. Last month, she was told that a random drug test she’d taken for her employer, the Jordan School District, came back positive.
Jeanette Hales, a school bus driver in Salt Lake County, Utah was forced to either resign or be fired after she tested positive for THC, the compound that causes the high experienced by marijuana users. However, she hadn’t used the drug but instead was taking CBD capsules to relieve stress. Hales received the pictured bag as a Christmas present from the district. (Photo: Susan Cohen for USA TODAY)
“I knew right then what was going to happen,” says Hales, who had not been using marijuana but taking CBD to help her sleep and relieve stress. “Five days later they called me in and they gave me the option to be fired or to resign.” She decided to quit.
The school district did not respond to a request for comment.
“In some cases, it’s costing employers good employees, and it is creating conflict because you can imagine . the reaction of someone who is saying ‘Well, I actually abided by the rules,” says Howard Mavity, a partner with the Fisher Phillips law firm.
Jeanette Hales holds the CBD tablets she was taking. She has stopped using the product after the positive test results. (Photo: Susan Cohen for USA TODAY)
Farm bill spurs big business
A federal farm bill passed in 2018 legalized some cannabis by stating that when the plants contain less than 0.3% of THC, they would be considered hemp. Plants with more than that amount would be categorized as marijuana, which remains an illegal controlled substance.
Sales of hemp-derived CBD products soared after the legislation’s passage.
But only one of those products, a medication to treat two rare forms of epilepsy, has been approved by the U.S. Food and Drug Administration, meaning that many have not undergone federal scrutiny.
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. Some products may also claim to be THC-free but inadvertently contain it.
“Somebody may test positive,” says Barry Sample, the senior director of science and technology for the drug testing laboratory Quest Diagnostics. “It’s not the CBD itself that’s the problem. It’s contamination with THC that may be present in the specimen.”
More than two dozen federal law enforcement employees, for example, have faced disciplinary action after testing positive for THC in the wake of using CBD products, says Don Mihalek, executive director of The Federal Law Enforcement Officers Association, a nonprofit professional association representing more than 26,000 federal officers.
“There’s no way to differentiate between THC in CBD oil and THC in marijuana,” says Mihalek, who added that many officers have turned to CBD products as an alternative to pain medication. But with federal agencies having zero tolerance for positive drug test results “the agencies can’t afford to play a guessing game.”
The issue has drawn the attention of the FDA.
“In addition to safety risks and unproven claims, the quality of many CBD products may also be in question,” the agency says in guidance posted to its site. “Many were found to not contain the levels of CBD they claimed. We are also investigating reports of CBD potentially containing unsafe levels of contaminants.”
Hales, who drove a school bus for 11 years, did her homework before starting to use CBD.
Though the product did not say it contained THC on its label, she went to the brand’s website and learned it contained 0.1% of that compound, which she says was below the level permitted by the state.
And while CBD was never mentioned in the required drug and alcohol awareness class she and colleagues took, Hales says she checked with her trainer, who told her that using CBD products would not cause her to fail a drug test.
A clerk at the store where she purchased the capsules also told Hales the company that made them tested its own employees after they used the product. None of the results came back positive.
“I really thought I chose a safe product for me and for urine testing,’’ Hales says, remembering that on the day she lost her job, the human resources official she dealt with “spoke to me like I was a drug addict.”
She will be cautious in the future as she searches for a new job.
“I know the value of CBD, and it did for me exactly what I needed it to do,” says Hales. But since she lost her job, “I haven’t touched it. And if I ever use it again, it will only be after I’ve secured employment that doesn’t care about a urine test.”
What If weed is legal?
Employers and workers could also feel the effects of the growing number of laws that allow people to use marijuana for medical or recreational purposes.
The District of Columbia and eleven states including California, Maine and most recently Illinois have made it legal for adults to possess small amounts of marijuana for recreational use, according to the National Conference of State Legislatures (NCSL).
Meanwhile, 28 states, along with the District of Columbia have extensive medical marijuana programs. And at least 17 more permit the use of products with a low level of THC to address medical concerns, NCSL says.
Employers are having difficulties navigating the legal changes. Nearly 25% of human resource managers say they “are extremely challenged” trying to comply with the various laws, according to a survey of more than 700 professionals by XpertHR, an online resource for the industry.
Generally, employers can prohibit the use of marijuana on their premises, even if an employee is legally allowed to use it for medicinal purposes. Job applicants, as well as hired workers who test positive for THC, can be denied employment or fired if that is the workplace’s policy.
But increasingly there are some exceptions.
In New Jersey for instance, where medical use of marijuana is legal, there are protections for workers or job applicants who test positive for the drug.
Employers must offer workers or job applicants who test positive the chance “to present a legitimate medical explanation for the positive test result,” or to retake the test at their own expense, according to the statute. Employees can still be penalized for using medical marijuana at work or for being impaired by the drug during work hours.
Similarly, Oklahoma, which permits the use of marijuana medically, says employers cannot discipline or refuse to hire someone solely because they test positive for marijuana. That doesn’t apply however to those who don’t have a health-related reason to use the drug or who have jobs deemed “safety-sensitive.”
To test or not to test?
Given the growing tolerance for marijuana, some say screening for the substance should be optional.
A New York City law says that as of May, employers with at least four people on staff cannot require a job applicant to take a test for marijuana as a condition of being hired.
As legalization becomes more widespread, “it makes absolutely no sense that we’re keeping people from finding jobs or advancing their careers because of marijuana use,” the city’s public advocate, Jumaane Williams, said in a statement.
The law does not override drug testing that is mandatory in collective bargaining agreements or required to get a job with the federal government. It also doesn’t apply to those wanting to work in law enforcement, child care, and other fields where the public or other workers can be impacted.
Despite the rising number of states legalizing the drug, testing workers for marijuana has dipped only slightly nationwide.
The percentage of urine drug tests that included screening for marijuana fell to 97.6% in 2018 from 99.2% in 2015, according to Quest Diagnostics. In states where recreational use of marijuana is allowed, the percentage of such tests dropped to 94.7% from 98.5% during that time period.
But all the legal changes can be confusing for workers, says the Drug Policy Alliance, a national nonprofit that advocates health-centered alternatives to more punitive drug policies.
“Employees are less aware of what is and is not allowed and how legal regulations line up with those of their employer,’’ says Matt Sutton, a spokesman for the organization.
So what actions should employees and employers take in such a rapidly changing landscape?
Read labels: “Clearly employees and applicants that want to use CBD products need to pay close attention to the labels on these products, but it’s still very much ‘Buyer Beware’’’ says Sample.
Workplaces should review their policies: Mavity says that employers should consider updating their anti-drug guidance “warning employees of this issue because it is a very big problem. Studies show a lot of these CBD products are containing THC.”
The Society for Human Resource Management has also offered guidance. “While some states have legalized recreational and medical use of marijuana, it is still illegal under federal law,” says Amber Clayton, director of SHRM’s HR Knowledge Center. “In states where it is legal, employers should ensure compliance with state laws, which may require a review of the circumstances.”
There may also be rules specific to the medicinal use of CBD. “An employer might decide to make an exception to its drug policy if the person has a disability for which he or she uses CBD oil, particularly if he or she is not impaired on the job,” Clayton says.
Give your workplace a heads-up: If you are using such products, alert your employer so there are no unexpected consequences down the line. “We don’t want our members who are trying to do the right thing penalized,” says Mihalek of the Federal Law Enforcement Officers Association. “The simplest thing to do . is go to a doctor, get a prescription and make sure your job’s aware of it.”’
Consider cutting out the CBD while job hunting: Until the products are better regulated, it might be best not to use a CBD product while you’re looking for work, or if you’ve got a job that requires periodic drug tests.
Follow Charisse Jones on Twitter @charissejones
Your job could be in jeopardy if a CBD product inadvertently contains the compound that causes marijuana users to get high