If you’ve left your house in the past 12 months, you’ve probably noticed that CBD is everywhere. Not only that, people are giving it a try. Your aunts, uncles, the cat lady down the street, everyone’s doing it. In fact, a 2019 Consumer Reports survey found that approximately 64 million Americans have at least tried CBD with no signs of slowing down. According to research firm Brightfield Group, CBD is expected to grow into a $23.7 billion industry by 2023. With so many people trying out CBD, employers may rightfully wonder: how does this affect my drug testing policy?
The answer is nuanced (of course!). To pass a urine drug test, the amount of THC in someone’s system must be below 50 ng/mL. This is the cutoff recommended by the Substance Abuse and Mental Health Administration and the National Institute of Health. To reach this level by consuming properly labelled CBD products, that translates to around 2,000 mg of CBD.
Although both CBD and THC are fat soluble and can be stored in the body for extended periods of time, they typically leave the body in a week or less. The time frame can vary depending on an individual’s diet, level of fitness, and level of use and can take up to a month for habitual marijuana smokers.
So, unless you’re eating CBD products for breakfast, lunch, and dinner, CBD products containing below the permissible limit of 0.3%, one’s system should likely not contain sufficient amounts of THC to trigger a positive drug test. (Check with appropriate medical/testing professionals. We are no medical experts!)
The problem is that many products currently on the market contain higher than the permissible levels of THC. A study conducted by Penn Medicine Researchers from 2017 found that around one in every five CBD products on the shelves contained above legal levels of THC. Recently, stories have hit the news of employees claiming to have been fired after failing a drug test because of CBD products, such as a former school bus monitor from Missouri or a 61 year old woman from Indianapolis. Both women claim to never have smoked marijuana in their lives.
If an employee fails a drug test and tells you that it was because of taking CBD, they may be telling the truth. Especially if their test results show a low level of THC in their system. However, the burden may not be on the employer to make accommodations for employees that are rolling the dice by ingesting CBD, after the fact. Employees should understand the risks involved with using CBD, including the accidental ingestion of higher than legal levels of THC.
Some factors that employers should weigh when making this decision are whether employees will be operating vehicles or machinery and if employees’ job functions include hazardous activities. These are bona-fide liability and risk considerations for employers.
We expect this to become less of an issue once state and federal regulations catch up to the CBD craze and producers/processors are able to find ways to produce more consistent products.
That said, employers can likely restrict their employee’s consumption of legal products while on the job. This happens with alcohol. There is no reason to expect that employers won’t be able to do this with CBD or other cannabis products.
That said, cannabis, unlike alcohol, has been heralded by some to have medical benefits. So if an employee is consuming cannabis products for medical reasons, the host of considerations for employers expands, i.e. disability discrimination considerations.
The American with Disabilities Act (ADA) and related state laws make it illegal to discriminate against workers with disabilities. Employers should ensure that their policies are updated and comprehensive enough to accommodate the changing landscape of available treatments which may include a medically sanctioned used of cannabis products.
For employees, disability discrimination laws usually require a “disability” to be protected by the law. In fact, some courts in California, Washington, and Oregon, have ruled that employers need not accommodate medical marijuana use. As with most things with the law, it will always depend on the unique circumstances of each situation.
Prudent employers should take proactive steps to ensure that their drug-testing and screening practices comply with emerging laws on the issue.
Cautious employees should ensure that they go through the proper channels for medical certification for a disability before claiming a disability as a reason for cannabis use. They should also be upfront ahead of time with their employers about their medical issues.
Even at that, to the extent that the burdens or risk posed by an employee’s use of cannabis products pale in comparison to any reasonable accommodations, Employers may still be within their rights to take appropriate actions.