Pre-Employ Blog

My employee uses CBD. Now What?

Posted by Bob Mather on October 29, 2019


In most states, it is hard not to drive past a sign or billboard touting the healing wonders of CBD products. It is an industry growing at tremendous rates. Forbes magazine recently Reported  the CBD Market could $20 Billion by 2024. 

When a employee tests positive for CBD related products, many employers are forced to speak with legal counsel and attempt to decipher the local, state and federal laws surrounding CBD usage and the legality of the products in the workplace.

What is the difference between CBD, Marijuana and Hemp?

The word “hemp” is a variety of cannabis that contains 0.3% or less of THC (the compound associated with getting a user “high”). By contrast, the word “marijuana” is used to describe cannabis that contains more than 0.3% THC.

CBD (cannabidiol), another compound found in cannabis, has skyrocketed in popularity recently due to its purported health benefits without the intoxicating effects of THC. CBD is touted as a treatment for chronic pain, insomnia, and anxiety, among a host of other ailments. In 2018, even the Food and Drug Administration (FDA) joined the bandwagon by approving Epidiolex, a drug containing pure CBD for treating severe epileptic seizures.

Is it legal to use CBD in the workplace? 

The answer is... it depends.

Many employers have established a " don't ask, dont tell" approach to workplace usage of CBD products. As with marijuana, some employers have stopped testing completely for THC levels and have treated usage similar to ways that alcohol is treated. That is, usage before or after work is not grounds for reprimand but use at work is grounds for disciplinary action up to and including termination

But many employers treat it as an illegal substance, including the federal government. As reported by NBC News., Federal employees and those with security clearances may lose their jobs if CBD is found in their system. 

A memo issued by the Substance Abuse and Mental Health Services Administration (SAMHSA),  on July 24,2019, said that hemp-derived CBD was legalized under the Farm Bill enacted late last year, but noted that “the Food and Drug Administration does not certify levels of THC in the products.”

Although hemp is defined as cannabis containing no more than 0.3 percent THC, SAMHSA said that the lack of FDA regulatory oversight of products made from it means that they can be mislabeled and contain more than the allowed concentration of the intoxicating compound, which can show up in drug tests.

Due to the lack of oversight from FDA, federal workers and those with security clearances who test positive for THC metabolites will be penalized, regardless of whether they thought they were taking CBD alone

“Under the [Drug-Free Workplace Program], there is no legitimate medical explanation for a marijuana positive test result other than a verified prescription for Marinol®, Sativex® or generic equivalent,” Ronald R. Flegel, director of the SAMHSA Center for Substance Abuse Prevention’s Division of Workplace Programs, wrote.

The SAMHSA official said in the note to federal agency drug program coordinators and medical review officers that “the passage of the 2018 Farm Bill legalized hemp-derived products under certain conditions, but it does not change the policy on marijuana use” under federal law.

Therefore, “federal agencies should make every effort to inform applicants and employees of the risk that using such products may result in a positive marijuana test.”

In the weeks since that guidance was distributed, several federal departments have issued memos outlining their policies on CBD.

—NASA told its employees that CBD products could contain unlawful levels of THC that could jeopardize their jobs if they use them.

—Both the Department of Defense and Navy issued notices stipulating that members are barred from using CBD, regardless of their legal status.

—In July, the Coast Guard reiterated to sailors that using marijuana remains prohibited and that members are not allowed to visit state-legal dispensaries or use online cannabis services. That notice didn’t mention CBD specifically, however.

—Even prior to SAMHSA’s notice, the Air Force released a memo stating that “Airmen are advised against using CBD products.”

States Where Only CBD Oil Is Legal

In addition to the federal rules and regulations, employers must consider the State laws surrounding CBD use. 

Here are the 14 states with some form of legal medical CBD and what the requirements are, per the National Organization for the Reform of Marijuana Laws (NORML):

  • In Alabama, the only access to legal CBD is either by being part of a state-sponsored clinical trial, or having a debilitating medical condition for which they are currently under treatment. The access via debilitating medical conditions is also known as Leni's Law.
  • In Georgia, CBD oil can legally be prescribed to patients with over a dozen medical conditions, including cancer, multiple sclerosis, Parkinson's disease and seizure disorders. The legal limit a patient can have is 20 ounces of marijuana oil with no more than 5% THC, and the CBD amount must be equal to or greater than the THC.
  • Earlier in 2018, Indiana passed a law that made it legal to manufacture, sell in retail, possess and use CBD oil provided it had no more than 0.3% THC content in it. This was a major expansion of the legality of CBD, no longer requiring Indiana citizens to be on a patient registry to buy CBD oil.
  • The Department of Public Health in Iowa allows for limited amounts of CBD oil for patients suffering from several medical conditions. This includes HIV/AIDS, cancer, ALS and seizures. Five dispensaries opened very recently in Iowa. This oil can be found in creams, capsules and more.
  • In 2018, Kansas passed a law that exempted CBD products from the state's criminal code regarding marijuana. This allows for adults to legally purchase and possess CBD products as long as they contain 0% THC.
  • Kentucky has laws that allow for state-sponsored cultivation of hemp, which can be used to make CBD oil.
  • Mississippi made it legal for patients with severe epilepsy to use products high in CBD as long as they were low in THC in 2014. The cannabis extract must have more than 15% CBD, but no more than 0.5% THC, and must be done by or under the supervision of a licensed physician.
  • The law in North Carolina also only makes CBD legal for patients with intractable epilepsy. The CBD for this is made from hemp extract.
  • South Carolina legalized CBD for those suffering from severe epilepsy disorders (including Dravet Syndrome, the condition Epidiolex was created to treat). The cannabis extract for must have extremely trace amounts of THC.
  • The state of Tennessee considers CBD made from hemp extract, not marijuana, to be legal. CBD is also able to be prescribed to patients with intractable epilepsy if it contains trace amounts (no more than nine-tenths of one percent) of THC
  • The CBD law in Texas also makes an exception for intractable epilepsy patients. This went into law in 2015, and the extract must contain over 10% CBD and no more than 0.5% THC.
  • Virginia recently expanded legal CBD use when Governor Ralph Northram signed into law a bill that legalized CBD oil for any condition diagnosed by a licensed doctor or practitioner.
  • CBD has been legal as a treatment for seizure disorders in Wisconsin since 2014, and in 2017 the Senate expanded its legality to be used as treatment for any medical condition a doctor recommended it for.
  • Wyoming has a particularly narrow law for CBD oil. It is only legal for patients with epilepsy that has not responded to other treatments. Neurologists have to give the state's Department of Health a statement about how the patient needs and would benefit from the CBD, made from hemp extract, and then the patient may be able to receive a card that allows them to receive cannabis with high concentrations of CBD and trace amounts of THC.

The Answer: 

As in most employment decisions, speaking with a qualified attorney prior to making any disciplinary action is advised. Beyond that, each organization must look at the job descriptions, responsibilities and take all into consideration before making any decision. 

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Topics: Marijuana