Because it’s related to marijuana (and can be sourced from that or hemp) and the legal gray areas, employers are often worried about it. But, here’s what employers need to know about CBD.
1. CBD Oil Doesn’t Cause Impairment
CBD is one of many cannabinoids in the marijuana plant, and it’s also found in the hemp plant. It is not the same as THC - which is the chemical in cannabis that causes the psychoactive high when someone uses marijuana. CBD, on the other hand, provides the therapeutic benefits of marijuana without the high.
This means that your employees could use CBD oil for depression, pain relief, anxiety relief, or a number of other conditions without interfering with their ability to do their job as expected and intended.
2. It is Legal to Use - Most of the Time
Because of the Farm Act of 2018 legalizing industrial hemp, CBD is now legal on the federal level, as long it only contains 0.3% or less THC. However, certain states have restrictions on it, such as Virginia requiring a doctor’s prescription to use it.
If you are in a state where medical marijuana use is legal, those using CBD may have protections that mean you cannot punish an employee for using CBD oil. If however, the CBD comes from a marijuana plant, it is federally illegal, and cannot be used in states where there are no medical marijuana laws.
3. CBD Oil from Marijuana Can Cause Positive Drug Tests
The CBD that is legal on the federal level cannot contain more than 0.3% THC, though some states have laws that allow for higher concentrations of up to 5%. If the CBD comes from marijuana rather than hemp plants, there’s a possibility the THC content could trigger a positive marijuana result on a drug test.
You won’t be able to tell whether a positive test for THC came from the use of CBD or cannabis oil, rather than marijuana use. That’s why it’s important to look for and be able to recognize other signs of impairment, such as delayed reaction times and red eyes. If someone does test positive for THC, you may want to have a conversation with that person to see if they have a reason for the positive test.
Depending on your state and applicable law, you may be required to give the individual the opportunity to produce proof that a positive drug test result was caused by a lawful CBD use and conduct an individualized assessment as to whether the use of CBD would interfere with that person's essential job duties and responsibilities and or cause a direct threat to their or others health and safety.
4. There are No CBD Drug Tests
To make matters even more complicated, there is no drug test currently available on the market today that tests for CBD. If people are using the federally legal CBD oil, there isn’t enough THC in the product to trigger a positive marijuana result.
There is no word on when or if a CBD specific drug test will ever become available. Because of this, some employers have decided to stop testing for THC in their drug tests.
5. Employers Don’t Have to Accommodate CBD in All Cases
Generally speaking, you can prohibit employees from using or possessing any type of CBD that has not been legalized in the workplace during work hours and on company property.
However, under certain circumstances, request for CBD may trigger a conversation about whether the employee has a disability that requires a reasonable accommodation.
6. It’s Worth Developing a Policy About CBD
Before you take action against CBD users, use some guidelines to develop a CBD oil company policy. Consider revising your current policies to address CBD use. Employers in states with medical marijuana laws in place may have a duty to accommodate the underlying condition prompting the CBD use.
Train your managers because they'll need to know how to address situations where an employee defends a hot test by using CBD. As the landscape evolves, review the laws in your state, work with your local employment council, and be flexible until more CBDs rules and regulations are in place,
7. You May Not Be Able to Prohibit Use Outside of Work
While in most cases you can restrict use at work, there are certain situations where you cannot legally prohibit your employee from using CBD oil or other CBD-based products when they are off the clock. In medical use cases, you may not be able to stop an employee from using their legal substance while on the clock or on company property.
If your employee is taking the best CBD oil or cannabis oil in accordance with your state’s medical marijuana laws, there may be state law protections. Otherwise, if you have a zero-tolerance drug policy, you’re free to discipline employees if they fail a drug test, even if they inadvertently ingested the THC - whether you are in a state with legal medical marijuana or not.
8. Look Closely at Your State Laws
Ultimately, what you can and cannot do as an employer largely depends on the laws in your state regarding medical marijuana use.
As such, you need to work with your legal counsel to review any applicable laws and come up with a plan for how you will respond before an issue arises. As this area of walking continues to evolve, you'll need to closely monitor both federal and state laws so that you can keep your policies and practices current with any changes.
Ultimately, employers can discipline employees who are using marijuana on a recreational basis, even in states where it is legal to do so. Those who have certain health conditions and use medical marijuana as part of their treatment for those conditions cannot be disciplined as long as they are employed in a state where medical marijuana use is legal.
