CBD at Work: Navigating Drug Testing and Workplace Safety After a Recent Court Ruling

The use of CBD products is on the rise, with approximately 25% of adults either using them or interested in trying them. CBD is used by consumers to help relieve a variety of physical and psychological ailments, including depression, anxiety, pain, and inflammation. However, the intersection of CBD use, workplace drug testing, and safety regulations is becoming increasingly complex, especially in light of recent legal developments. A positive drug test can have significant consequences, potentially affecting your job. Understanding your rights and responsibilities is crucial.

Understanding CBD and THC

Cannabidiol (CBD) is a cannabinoid found in the Cannabis sativa plant. Unlike delta-9-tetrahydrocannabinol (THC), the primary psychoactive compound in cannabis, CBD does not produce a “high.” Hemp-derived CBD products are federally legal as long as they contain no more than 0.3% THC. However, this seemingly clear distinction can become blurred in practice.

The Tricky Reality of Drug Testing

Most workplace drug tests screen for THC, not CBD. However, the consumption of certain CBD products can lead to a positive THC drug test for several reasons:

THC Contamination: Some CBD products, particularly those that are “full-spectrum” or “broad-spectrum,” may contain trace amounts of THC. Even these small amounts can accumulate in the body with regular use, potentially triggering a positive result. Studies show that many CBD products sold online and in stores aren’t labeled accurately.
Mislabeling: The CBD market is not yet fully regulated, leading to inconsistencies in product labeling. Some products may contain more THC than advertised, even if they are labeled as “THC-free.”
Conversion of CBD to THC: A study found that the acidic environment of the stomach can (theoretically) convert some of the CBD into THC. However, this was an in vitro study, which does not necessarily correspond to the reality in the human body.

Recent Court Rulings and Their Impact

Recent court rulings have shed light on the legal complexities surrounding CBD use and workplace drug testing.

Pennsylvania Supreme Court Ruling: In Schmidt v. Schmidt, the Pennsylvania Supreme Court ruled that employers must cover the cost of CBD oil if it is prescribed by a doctor as part of a treatment plan for a work-related injury. The court determined that FDA approval of a treatment is not a requirement under the statute. This ruling has significant implications for workers’ compensation cases in Pennsylvania, requiring employers to pay for a broad array of non-prescription items including over-the-counter medications, dietary supplements, non-FDA approved analgesics, and CBD Oil.
U.S. Supreme Court and Truck Drivers: The U.S. Supreme Court has opened the door for commercial drivers to sue CBD manufacturers if mislabeled products lead to failed drug tests and job loss. This ruling stems from the fact that there is very little regulatory oversight of CBD manufacturers, particularly when it comes to the representations they make on their packagings. The Court ruled that a truck driver can sue CBD manufacturers under the Racketeer Influenced and Corrupt Organization Act (RICO) if they were misled by false labeling.

Navigating Workplace Safety and Drug Testing

Given these complexities, how can employees and employers navigate the intersection of CBD use, workplace safety, and drug testing?

For Employees:

Know Your Employer’s Policy: Familiarize yourself with your employer’s drug and alcohol policy, including specific rules regarding CBD use.
Choose Products Carefully: Opt for high-quality CBD products from reputable sources that provide third-party testing results (Certificates of Analysis or COAs). Look for products labeled as “CBD isolate” to minimize the risk of THC contamination.
Be Transparent: If you use CBD products, consider discussing it with your employer or the testing agency, especially if drug testing is a concern.
Consider Abstinence: If you are subject to drug testing, the safest course of action is to abstain from using CBD products altogether, especially close to a urine screening. Experts agree it’s a good idea to abstain for at least 30 days before your drug test.
Understand Your Rights: Be aware of your rights under state and federal laws, particularly if you use CBD for medical reasons.

For Employers:

Review and Update Drug Policies: Update your drug-free workplace policies to address the use of CBD products and explain how the employer will handle a failed test due to CBD use.
Educate Employees: Educate your employees about the potential risks of using CBD products, including the possibility of testing positive for THC.
Consult Legal Counsel: Carefully examine the cannabis laws in your jurisdiction and consult with counsel before deciding whether to permit employees’ use of CBD products or marijuana.
Consider Accommodation: In states with medical marijuana laws, consider whether the use of CBD outside of work could possibly be protected under state law.
Verify Prescriptions: If an applicant or employee who is using medicinal CBD tests positive for THC, verify she has been legally prescribed CBD and assess whether CBD use would prevent her from safely performing her job functions.

The Importance of Clear Communication and Policies

The key to navigating CBD use in the workplace is clear communication and well-defined policies. Employers should clearly communicate their expectations regarding drug use and impairment, while employees should be transparent about their CBD use and any potential risks.

As the legal landscape surrounding CBD continues to evolve, staying informed and seeking expert guidance is essential for both employers and employees.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Consult with a qualified legal professional for advice tailored to your specific situation.