Employers, especially those with employees involved in operating equipment, commonly issue drug tests. And although it is their legal right to do so, it is important for employers to understand the potential for false positives, and also to understand the nature of CBD and how it fits into the company’s personnel policy.
CBD has only been legal since the passage of the Farm Bill of 2018, and many employers have not yet crafted policies related to it, and may misunderstand what it is. CBD is a cannabinoid which is derived from the hemp plant. It is not psychoactive, and will not cause the user to be impaired. It should not be confused with THC, which is another cannabinoid contained in cannabis (marijuana). Hemp is a close cousin to cannabis, but contains less than 0.3 percent of THC.
A notice from the Department of Transportation provided some clarity, at least for employees whose employment is regulated by the DOT, such as truck drivers, bus drivers, and pilots. While the DOT acknowledges valid use of CBD, it also warns users that if they do fail to pass a drug screen, claiming use of CBD will not be an excuse. In most cases, use of CBD, which is produced according to FDA guidelines and contains less than 0.3 percent of THC, will not trigger a positive drug test result. The DOT issued three guidelines for employees, and while these guidelines are meant for employees who fall under DOT regulations only, it may also serve as a useful guide for all industries:
- Testing for marijuana is mandatory, but testing for CBD is not.
- Because the FDA has not yet begun to certify levels of THC contained in CBD products, there is no oversight, and the stated level of THC on the label may be inaccurate.
- The DOT further says that use of CBD is not a legitimate explanation for testing positive for marijuana.
Employers who are not bound by DOT regulations are not required to follow the above rules, but will want to issue some clarity to employees in any case with a policy that will be suited to the employer’s specific industry. While the DOT appears to take a hard line in regard to false positive results due to the safety-sensitive nature of DOT-regulated employees, other employers may want to craft their own policies by keeping in mind that CBD is not psychoactive, is legal, and does not cause impairment.
Employer policy must also take into account the possibility of a false positive drug test. While DOT-regulated employers are required to take a zero-tolerance, no excuses approach to false positives, this is not appropriate for most other industries. It is a fact that, because of the present lack of FDA oversight, it is possible that an employee may inadvertently purchase and take a CBD product which contains greater than 0.3 percent THC, and they may test positive for marijuana as a result. Consequently, a common-sense approach would be to look for other signs of impairment, such as delayed reaction times.
Employers may also want to treat a positive result in a THC test with some flexibility, and follow up that positive test with a conversation with the employee to see if there is a reasonable explanation (such as use of CBD). A policy should be developed, and managers trained, to deal with a situation where a positive THC test comes back and an employee defends it with a claim of using CBD. An individual assessment may be in order. Some employers have modified their drug test protocol to test only for more serious drugs, and to eliminate testing for THC.
Generally speaking it is not legal to prohibit an employee from using or possessing CBD, and employers who do not yet have policies that specifically address CBD may wish to develop one. Company policy may also include educating employees on the potential for a false positive, and on the right way to choose a CBD product which is less likely to yield such a result. Taking a CBD isolate product, rather than a full-spectrum or broad-spectrum CBD product, will not yield a false positive result because the CBD isolate is produced using a process that extracts CBD from hemp in pure form without any of the other cannabinoids.
Things employers should keep in mind when developing a CBD policy include:
- CBD is legal and not psychoactive and should not cause impairment.
- In some cases, because the FDA has not yet issued guidelines and testing, some CBD products may contain more than the legal level of THC and may therefore yield a false positive result on drug tests for THC.
- If you are regulated by the DOT, there is a clear set of zero-tolerance guidelines regarding positive THC tests. Other industries may wish to take a more individualized approach.
- Create a set of employee guidelines which clearly explains the risk of taking a CBD product which exceeds the legal maximum of THC, the potential for a positive drug test and what the consequences will be.
- In many cases an employee is taking CBD because of an underlying condition, employers should have a clear set of guidelines as to what accommodations may need to be made for such employees.
- Train managers on your new CBD policy, and instruct them on recognizing impairment and what actions, if any, should be taken if an employee defends a positive drug test with a claim of CBD use.