Employment Law Blog

News, trends and analysis in employment law and HR

May 17, 2019

CBD products may cause positive drug tests (surprise!)

Drug and Alcohol 

Marijuana-derived cannabidiol (CBD) products may also contain tetrahydrocannabinol (THC), the psychoactive part of cannabis, causing positive drug tests for workers who use CBD products. The federal government still considers marijuana illegal, but almost every state has legalized cannabis for medical or recreational use, and many cannabis-based products – including CBD products – are available to consumers. CBD is different than THC. THC is psychoactive (causes a high), while CBD is not. CBD has some limited legitimate medical uses, and doctors may recommend it for patients. But consumers can also buy recreational CBD, usually in the form of oils or food products. THC shows up on drug tests; CBD by itself does not.
 
But some workers are finding out the hard way that CBD products may contain more THC than advertised. In one recent case, a worker was terminated after consuming CBD oil called “Dixie X” that was advertised to have zero percent THC, but which turned out to have enough THC to cause a positive drug-test result. (Notably, this particular worker “first learned about Dixie X in an issue of ‘High Times’ magazine….”) CBD products are often advertised as having little or no THC. In reality, many CBD products contain THC. But employers don’t have to treat positive drug-test results caused by CBD products any differently than positive drug-test results caused by old-fashioned marijuana, at least not yet, and workers consume CBD products at their own risk.
 
In California, Idaho, Montana, Oregon, and Washington, an employer may test workers for the presence of marijuana in their systems, regardless of how it got there, as long as the employer has a consistently applied drug-free workplace policy. In those states, employers don’t have to accommodate an employee’s off-duty marijuana use, even for legitimate medical reasons. But a handful of legislatures in other states have passed laws that require employers to accommodate off-duty marijuana use for medical reasons, and New York City recently passed an ordinance that bans pre-employment drug testing for marijuana, except for safety-sensitive and security-sensitive jobs. We expect the law will continue trending toward more worker protections for off-duty marijuana use, and we’ll update members if and when that happens. For now, if you need more information, consult Vigilant’s Legal Guide Marijuana in the Workplace, and Vigilant’s Model Drug and Alcohol Policy, or members can contact your Vigilant employment attorney.

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This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult Vigilant or legal counsel.

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