Marie Raperto, The Hiring Hub Using CBD is a popular topic. I'm being asked if it can show up on a drug test and if you can be fired or have a job offer Using CBD is a popular topic. I'm being asked if it can show up on a drug test and if you can be fired or have a job offer rescinded for a positive result. Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case — April 28, 2022
Using CBD? Yes, You Can Be Fired
Using CBD is a popular topic. I’m being asked if it can show up on a drug test and if you can be fired or have a job offer rescinded for a positive result. According to PayScale, the answer is maybe. It’s very complicated.
First, CBD is a naturally occurring chemical compound in the cannabis sativa plant which has two primary species: marijuana and hemp. CBD can be extracted from either species. The 2018 Farm Bill legalized hemp cultivation and allowed the transportation of hemp-derived products across state lines. This bill defines hemp as those plants containing less than 0.3% of tetrahydrocannabinol or THC (the compound that causes marijuana users to get high.) Both THC and CBD interact with your body’s endocannabinoid system but have different results.
Here comes the complicated part, the Farm Bill states that hemp-derived CBD is legal “if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, state regulations and by a licensed grower.” It is illegal to market CBD by adding it to a food or labeling it as a dietary supplement according to the FDA and they have approved only one CBD product so far – a prescription drug to treat two rare forms of epilepsy.
There is an extreme lack of regulation in this area and it is rapidly changing.
While CBD is becoming mainstream, it doesn’t mean your employer will allow it. It may depend on the type of job you do or the type of employment you are seeking. Jobs in transportation and those dependent on federal funds may be more restrictive. It is really up to your employer. According to The National Law Review:
- Employers are generally permitted to adopt drug-free workplace policies and make employment decisions relating to recreational marijuana use by an employee.
- Employers are allowed to refuse to hire prospective employees for failed drug tests stemming from the purely recreational use of marijuana.
- Whether an employer must accommodate the use of CBD oil for medicinal purposes will vary by the jurisdiction and will depend greatly on whether the CBD oil is derived from help or majijuana.
So beware. CBD or using CBD-infused products could result in positive THC test results and it would be possible to get fired. Most employers screen for THC, current drug testing does not look for CBD. However, CBD products can contain more THC than listed on the label and that small amounts can build up in the body to detectable levels. There isn’t any uniformity in testing since each state can determine how it samples and tests help plants for THC content.
Can an employee legally be fired for using over-the-counter CBD products?
Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case dismissed.
So, let’s talk about how and why.
According to the plaintiff’s complaint, she had a disability for which she used an over-the-counter CBD product. It appears that her doctor suggested that she use the CBD product. (It’s not clear whether the doctor prescribed CBD.)
Problems arose when the defendant randomly selected the plaintiff for a random drug test. The plaintiff took the test, at which time she learned that the over-the-counter CBD would cause a positive result. After taking the test that day, the plaintiff emailed the defendant to determine what “documentation” she needed to provide regarding her CBD use. The defendant did not respond.
Sure enough, the plaintiff’s drug test came back positive for THC the next day, and the defendant fired her immediately for illegal drug use. The plaintiff then sued for disability discrimination under the Americans with Disabilities Act.
Now, here’s the thing with the ADA. It does not protect employees from the illegal use of drugs. (CBD products may contain THC).
The ADA does protect CBD users from discrimination based on any underlying disability. But here’s the rub. Suppose the employer doesn’t know any underlying disability. Then, a firing after a positive drug test can’t result in a viable ADA claim.
In this case, the defendant did not know that the plaintiff had a disability — at least not until after the defendant got the test results. Maybe, it never knew.
Plus, the defendant had a good drug test policy. The policy stated that any employee taking prescription or over-the-counter drugs that could be considered “illegal” must provide advance documentation identifying the medication and dosage. Otherwise, the company would deem the drug “illegal,” and “failure to report the use of such drugs to HR may result in disciplinary action, up to and including termination.”
The plaintiff claimed to have used CBD for a while before her random drug screen. But she did not inform the defendant before her drug test. Instead, she provided a doctor’s note post-test. Had the plaintiff followed the policy, the defendant might have given her a pass on the negative results. Instead, when the plaintiff tested positive for illegal drugs (THC), the defendant had no reason to believe she used legally prescribed drugs.
Of course, your mileage may vary depending on the state/city in which you operate and the unique facts and circumstances surrounding a positive drug test involving CBD. But, in many instances, you can fire someone simply because they test positive for marijuana.
(That said, unless you operate in an industry that requires drug testing, why bother? But that’s a post for another day.)
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