At a times when CBD-infused products are everywhere, it is hard to weed the facts from misinformation regarding the status of cannabis (and its derivatives) when it comes to employment. Many employers are confused on what products are permissible and what is still illegal. 

Here are some of the questions I get from clients confused about what they can and should do:

  • Do I have to hire a candidate who failed the drug test because of a medical marijuana consumption?
  • Should we even bother with drug testing? It seems that no one can pass a drug test these days. 

Chemistry and Vocab Lesson

Let’s start with a brief (non-scientific) review of the terminology associated with cannabis use:

  • Marijuana and hemp are different species of cannabis but they are not treated similarly under the law. More on that later!
  • CDB stands for CannaBiDiol. CBD oil can be extracted from marijuana or hemp. It is increasingly popular and is commonly used to alleviate a number of chronic disorders and pain. However, there is limited scientific evidence to support the efficacy of CBD oils as medical treatment.
  • THC stands for Tetrahydrocannabinol. CBD and THC have the same chemical formula. The difference lies in the way the atoms are arranged which gives CBD and THC different chemical properties. THC is the main psychoactive compound in marijuana. It’s what makes people feel “high.”

It is interesting to note that the FDA has approved only one CBD product, a prescription drug, to treat rare forms of epilepsy. Its website states that “it is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Whoa! Who knew when you see the number of CBD-infused edibles available in many medical offices?

What Does the Law Say?

Under federal law, marijuana is still illegal which means that products containing CBD and THC, if derived from marijuana, should still be off the market. However, 33 states and DC have legalized marijuana for medical use and 11 states and DC have recreational marijuana laws. The federal government isn’t enforcing the ban on marijuana in those states that have legalized it in one form or another. 

In the remaining 17 states that have not legalized the substance in any way, there are moves (like in Virginia) to take a pass at enforcing the federal law.

Since January 2019, hemp is no longer a controlled substance and is legal nationwide. Hemp contains both CBD and THC (at low levels). This brings a complicating factor for CBD products. When CBD is derived from hemp it is now a legal substance. However, CBD derived from marijuana remains illegal in states like Virginia. One of the source of conundrum is how can anyone attest where the CBD oil was extract from?

What Does This Mean For Employers?

Clearly, this is an evolving landscape for employers. 

At a recent law conference, employment law attorney Anne Bibeau attempted to clear the cannabis confusion. First, employment drug tests are designed to reveal the presence of THC not CBD. However, drug tests do not always accurately distinguish between THC and CBD presence.

Nevertheless, Anne doesn’t recommend abandoning drug testing altogether. “You don’t want to be known as the employer of choice by illegal drug users in your community.” 

In states that have not legalized marijuana, there is no protection in employment when THC use is detected. In addition, employers in at-will states can terminate an employee for any reason or no reason, as long as it is not an illegal reasonable (e.g. discrimination). In the 17 states where marijuana is illegal, employers are generally permitted to terminate an employee after a positive drug test or being caught using an illegal substance (e.g. smoking or cultivating pot on work premises). 

However, under the Americans with Disabilities Act (ADA), using CBD or THC products can be a reasonable accommodation for a disability. In states that have not legalized marijuana, it is still questionable whether employers are required to accommodate disabled employees’ marijuana use according to Anne Bibeau. In any case, she recommends having a policy addressing drugs in the workplace. It should include whether marijuana use is permitted and outline the practices around drug testing. When it comes to federal contractors, Anne reminds us they are required to have a Drug Free Workplace policy and should enforce it. 

Regardless of the state where you operate, it is wise to engage in the iterative process whenever an employee or a job candidate engages in marijuana use. The decision to accommodate or terminate will depend on a number of factors:

  • The type of position. Detailed position descriptions listing the essential functions and physical requirements of each position provide a good basis for the interactive process to determine whether accommodation is possible. Anne Bibeau suggests safety sensitive positions (e.g. forklift operators, truck drivers) should not tolerate any marijuana use.
  • What is the basis for marijuana use? Is it medical or recreational? Is it daily or occasional? 

Finally, unlike alcohol, there is no definition of what constitute impairment from consuming CBD or THC. These substances can remain in the blood stream for weeks after consumption and may or may not cause impairment at work.  Until there is a test measuring impairment by THC/CBD, employers will probably have to navigate the smoky situations on a case by case.

For legal advice on this topic, contact Anne G. Bibeau, Esq. at Vandeventer Black LLP. Anne is the firm’s Labor & Employment Law Practice Group Manager. She focuses her practice on labor and employment law and the emerging hemp industry among other things. 

She can be reached at ABibeau@VanBlackLaw.com, 757-446-8600.