October 30, 2019

Hot Issue: CBD Products and Employee Drug Testing

CBD Products: Everybody’s Doing it but Will it Affect Employment?
By Morgain Patterson, Director of Municipal Law and Training 

CBD products have gained a substantial following in the United States. A quick internet search on CBD yields thousands of products advertising relief from joint pain and anxiety, the majority of which are prominently labeled “THC free!” Friends of mine that are using the product tell me that it absolutely works for them. Ask around and I bet you will be surprised at who is using it and touting the results. Why then, are employees across the country testing positive for drugs after using CBD products? Because not all products are equal.

CBD is cannabidiol, one of the chemicals found in both hemp and marijuana with no psychoactive properties, meaning no mind-altering affects. THC is the psychoactive chemical most popularly known to be found in marijuana but, contrary to popular belief, it is also found in hemp. In Kentucky, if a CBD product has less than .03% THC, and is sourced from legal industrial hemp that does not contain plant matter, stems, flowers, etc., then it is legal for consumer use. Hemp flowers, stems, leaves, or raw plant matter remain classified as illegal marijuana under KRS 218A.010 (28). KLC recently discovered that some retailers have been selling this plant matter in the good faith belief that it is legal. We have been working with the Kentucky Retailers Association and the Kentucky Petroleum Marketers Association to inform retailers that these products are not legal in Kentucky. Regardless of what legal products a consumer selects, it is important to know that CBD products are not tested by the Food and Drug Administration for THC content. This means there are a lot of mislabeled products available on the market and using these products may result in a positive drug test.

In 2017, the Journal of American Medical Association (JAMA) conducted a study of CBD products found online. Scientists purchased 84 products from 31 different companies to test for quality control and found 21.43% of these products contained a THC content sufficient to produce intoxication. This means that use of these products would likely result in a positive drug test. Additionally, 26% of the 84 products tested contained less CBD than packaged. Only Kentucky Proud and federally-regulated products derived from industrial hemp are sure to be legal and to contain less than .03% THC.

CBD products labeled Kentucky Proud are sourced from Kentucky industrial hemp that is verified through testing to contain below .03% THC. Companies participating in the Kentucky Proud program submit industrial hemp samples to the Kentucky Department of Agriculture for testing and only those batches falling below the .03% THC level can be used for consumer production. 

At the federal level, the only CBD product approved for use by the FDA is the prescription drug Epidiolex, which is an anti-seizure medication.
  Any other products can contain intoxicating levels of THC, resulting in a positive drug test for employees.

Drug tests for THC are actually tests for “marijuana metabolites.” This is not a test to determine whether an employee is intoxicated at the time of testing. Instead, the test is detecting whether the chemicals used by the person’s body to metabolize THC are found in the person’s urine or blood at the time of the test. If it is found within unacceptable standards, the test issues a positive result. For Department of Transportation (DOT) and Kentucky Drug-Free Workplace tests, these tests are reviewed by medical review officer to determine whether they are medically acceptable. Medical review officers review the tests to determine whether there is an acceptable medical reason for the positive test. Once the test is reviewed and confirmed, the employer receives the final, verified result. There is no test that can determine whether THC in the person’s urine came from marijuana or a CBD product. Therefore, employees have no defense to a positive drug test.

Government employees are generally subject to pre-employment, reasonable suspicion, and post-accident drug testing. Pre-employment testing occurs after an applicant receives a conditional offer of employment but prior to a final offer. Reasonable suspicion testing occurs when the city reasonably believes through personal observation that an individual is under the influence of drugs or alcohol. Post-accident testing occurs if an employee or other person sustains an injury at work and there are legal reasons to believe that alcohol or drugs may be a factor.

Safety-sensitive and federally regulated employees are subject to random drug testing as well. Random testing is precisely that, randomly picked names. Cities expend significant time and money providing training and certifications to these employees. The consequences for employees who test positive can mean the loss of their job and for those who are federally regulated it can mean the loss of their license or certification as well.

Federally regulated employees are those designated under the Department of Transportation (DOT) rules and regulations to have a commercial driver’s license (CDL) or mechanics who work on CDL vehicles, as well as those regulated by the Federal Aviation Administration (aviation employees), Federal Motor Carriers Safety Administration (commercial motor carriers), Pipeline and Hazardous Materials Safety Administration (gas pipeline, including natural gas employees) and Federal Transportation Administration (public transit employees). These employees are subject to strict zero-tolerance regulations. A DOT employee testing positive for using THC must be immediately removed from any safety-sensitive position and cannot be returned to any safety-sensitive duties until they have completed a DOT-recognized substance abuse program. The employer is not required to pay for the employee to attend the program or return them to work upon completion, unless otherwise stated in the employer’s policy. In addition, failure to complete a DOT-recognized substance abuse program can result in the loss of the employee’s DOT certification or license.

A drug test indicating a positive result for marijuana, regardless of the source, will lead to discipline according to the employer’s personnel policy. The employment status of any employee testing positive for drugs or alcohol is dependent upon the city’s personnel policy. If the city has a zero tolerance policy, the employee will be terminated. If the policy allows for treatment for alcohol and/or drugs, the employee must participate in a last chance agreement. Under a last chance agreement, the employee is suspended from work during which period the employee must abstain from the use of illegal substances, agree to participate in substance abuse program, complete the program and agree to comply with all substance abuse professional recommendations. Prior to returning to work, the employee must submit to a drug test with negative results. The employee will agree to be subject to follow up random quarterly testing for at least one year, and up to five years, after the employee successfully completes the program. It is important for all classifications of employees to be treated similarly. So, if one employee is terminated on the first positive test, the city must treat others who test positive the same way.

The employment implications for CBD use can be significant if an employee is unaware of the potential for THC in CBD products. Both employers and employees are encouraged to do their research and discuss the impact using CBD products that contain THC can have on employment as well as the consequences of making a mistake. Across the country far too many employees are experiencing dire consequences because they are unaware that they are using a product with THC. We encourage all of our cities and employees to verify, then trust.

The KLC Municipal Law and Training team is continuously monitoring this issue. Call them with questions at 800.876.4552.