CBD: What Employers Need to Know

CBD seems to be everywhere lately. You may have noticed ads for CBD oil and other products, promising all types of health benefits—from eliminating acne to improving brain function to alleviating cancer-related symptoms. New shops selling CBD have popped up, and established businesses have gotten into the act. There is even a one-mile stretch in Houston where you can find not only a brand-new store that sells just CBD but also an established hardware store that has been around for decades that now sells it, too, alongside gardening supplies and power tools.

The CBD craze raises serious concerns for employers: First, what is CBD (and what is its relationship to marijuana)? And second, what, if anything, should an employer’s drug and alcohol policy say about the use of products containing CBD? To help clear things up, below are some answers to questions employers may have about CBD.

What is CBD, and how is it different from marijuana?

Both marijuana and hemp can contain cannabidiol (CBD), the main ingredient in CBD products. THC (tetrahydrocannabinol) is the psychoactive substance in marijuana that gets users high. Marijuana has high THC content and low CBD content, while hemp is the opposite, with high CBD content and low (or no) THC content.

Because hemp is high in CBD, CBD products are typically made from hemp, not marijuana. CBD first was sold as oil, but it can now be found in extracts, vaporized liquids, capsules, even beverages and cosmetics.

Is CBD legal?

The Agricultural Improvement Act of 2018 (enacted December 20, 2018) makes hemp and its derivatives, like CBD products, legal as long as their THC concentration is 0.3% or less, even without a prescription.

However, Texas state law is stricter, and some authorities have questioned the legality even of CBD products with 0% THC. So under federal law a user will need to be sure that the THC concentration is 0.3% or less, and under Texas state law even CBD products with 0% THC may be illegal without a prescription.

CBD products’ legality is questionable under Texas state law, to say the least.

What if an employee has a prescription for CBD?

The FDA recently approved a CBD-based drug, Epidiolex, for two rare types of epilepsy. There are also a few (very rarely) prescribed drugs that contain THC: Marinol and Cesamet, with future approval likely for another, Sativex. At the state level, the Texas Compassionate Use Act allows CBD medication prescriptions for some patients.

So if an employee tests positive for THC and presents a prescription for a federally approved drug or a drug under the Texas Compassionate Use Act, the employer should seek specific legal counsel to determine obligations and risks, including the risk that disciplining the employee could lead to allegations of disability discrimination.

Will using CBD cause an employee to fail a marijuana drug screen?

Use of CBD can cause an employee to fail a marijuana drug screen if the CBD product contains enough THC. (In fact, a study found that hair products with hemp oil contained THC that could cause a positive THC hair-follicle test.)

This is a problem because there is no regulation of nonprescription products containing CBD. A study of CBD-containing products found their THC content mislabeled in 100% of samples tested. Vandrey, R. et al., Cannabinoid dose and label accuracy in edible medical cannabis products. JAMA. 2015; 313: 2491–2493.  So even if a vial of CBD oil says it contains 0% THC, an employee may “involuntarily” ingest THC and have a positive drug screen. Welty, T. et al., Cannabidiol: Promise and Pitfalls. Epilepsy Curr., 2014 Sep-Oct; 14(5): 250–252.

What should employers think through when it comes to an employee who fails a THC drug screen based on using CBD without a prescription?

The hardest CBD question for employers is what to do if an employee fails a drug screen based on CBD use. Understandably, if an employee uses a CBD product labeled as “0% THC” and then fails a drug screen, that employee may feel that any punishment would be for an involuntary act.

There are a few things employers should think through. First, they should consider warning employees that CBD-containing products may also contain THC even if their labels say otherwise, coupled with a reminder of the employer’s drug-testing policies.

Second, employers should keep in mind that CBD is not documented to impair users, unlike THC or alcohol. So using CBD, on its own, should not affect job performance, and employers should likely not compare CBD ingestion to ingestion of legal substances that can affect job performance, like alcohol or sleeping pills. It makes more sense to focus on two distinct problems when an employee uses CBD products, specifically that they: (1) are arguably illegal under Texas state law, and (2) may contain THC, which is illegal and can affect job performance.

Third, with these two distinct issues in mind (its illegality and that it may contain performance-impairing THC), employers should decide what discipline would be appropriate for an employee who honestly believed they were ingesting THC-free CBD oil and then fails a drug test. Comparisons to similar situations can help. For example:

  • How would the employer treat an employee who had a positive hair-follicle drug screen and proved to the employer’s satisfaction that it was due to using hemp oil on their hair?
  • How would the employer treat an employee who claims that they failed a drug test not because they chose to smoke marijuana but because they were around marijuana smoke and inhaled it second-hand? Or an employee who claims that her positive drug test results from her unknowingly eating a brownie made using oil containing THC?
  • Less similar, but still worth considering: How would the employer treat someone who voluntarily ingested a compound knowing it contained THC, but did so in a state where THC is legal?

The Bottom Line:

CBD products raise tricky questions: they are legal under federal law if they have low THC content, but are likely illegal under Texas state law. CBD does not impair job performance, but CBD-containing products are often adulterated with THC, which is illegal and does affect performance. There are no easy answers, but considering how the employer treats similar situations (like involuntary THC ingestion or voluntary but legal THC ingestion) can help employers clarify their approach to CBD oil and drug testing.