CBD Oil And Drug Tests Pa

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A Pennsylvania court affirmed an order of the Unemployment Compensation Board of Review holding a claimant to be eligible for unemployment benefits after Lately, products containing CBD (from beer to skin cream to oils that can be diffused and vaped) seem to be all the rage. Why are CBD products suddenly

Pennsylvania Court Allows Unemployment Benefits For CBD User

A Pennsylvania court affirmed an order of the Unemployment Compensation Board of Review holding a claimant to be eligible for unemployment benefits after her employer terminated her employment for testing positive for marijuana. Washington Health System v. Unemployment Compensation Board of Review, No. 886 C.D. 2019 (May 11, 2020).

The Claimant was employed as a licensed Occupational Therapist and was subject to random testing under her employer’s drug and alcohol testing policy. On March 26, 2018, she was required to undergo a random drug test, which was positive for marijuana (according to her employer). Prior to the test, Claimant disclosed that she used cannabidiol (CBD) that she purchased over-the-counter to manage her cancer-related symptoms. The employer notified Claimant that she tested positive for marijuana and terminated her employment.

The employer did not submit the drug test result into evidence during the unemployment proceeding; however, Claimant testified that she was told that she tested positive for marijuana. Claimant denied using marijuana, but admitted that she used CBD and asserted that the use of CBD is “legal.” Claimant further testified that a doctor told her that CBD could cause a “false positive” test result for marijuana.

The Board of Review held that it was the employer’s burden to prove that the Claimant violated the drug and alcohol testing policy. It stated that the use of CBD oil with a THC concentration of .3% or less would be legal. Given that there was no evidence of the drug test result or the THC concentration in Claimant’s test result, the Board found that she was eligible for unemployment benefits.

The Court affirmed for the same reasons. Although the employer tried to argue that Claimant “admitted” she tested positive, she merely testified that she was told she tested positive. The drug test result was not entered into evidence. Moreover, the Claimant denied any illegal drug use. Therefore the employer failed to carry its burden of proof.

In addition, the Court stated that the employer failed to show that the ingestion of CBD oil would have affected the Claimant’s ability to perform her job safely, and failed to prove that CBD is a prohibited controlled substance.

A dissenting opinion noted, among other things, that the Court’s conclusions about the “legal” sale of CBD oil and its statements about the percentage of THC were irrelevant. The employer’s policy prohibited coming to work under the influence of drugs, and further defined that term as any amount of a drug that triggers a positive test result. Moreover, the dissent stated that Claimant’s subjective belief that CBD oil is “legal” was also irrelevant.

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This case highlights the fact that there are conflicting opinions about whether CBD is a legal substance. Moreover, the widespread availability of CBD products leads many people to assume that these products are legal, when they have not yet been approved by the FDA and the amount of THC that they may contain is uncertain. Employers should review the applicable laws in the states where they do business and should review their drug and alcohol testing policies to address CBD use by employees.

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

The ABCs of CBD in the Workplace

Lately, products containing CBD (from beer to skin cream to oils that can be diffused and vaped) seem to be all the rage. Why are CBD products suddenly turning up everywhere (your local Sheetz convenience store for example)? Blame it on the Farm Bill! The Agricultural Improvement Act of 2018 (otherwise known as the U.S. Farm Bill), removed hemp from the definition of marijuana under the Controlled Substances Act. As a result, hemp is no longer a controlled substance and, because CBD (which stands for cannabidiol) can be derived from hemp, CBD is arguably legal.

So what is the problem? Why are people who are using CBD products still testing positive for “marijuana” and why should employers be concerned?

CBD is a chemical compound found in the Cannabis family of plants. Notably, Cannabis has two main species – the hemp plant and the marijuana plant. CBD is not believed to have psychoactive properties. In other words, cannabidiol will not get you high. The other primary chemical compound found in Cannabis plants is THC (tetrahydrocannabinol).

THC does have psychoactive properties and is known as the compound that causes the “high.” THC is also the compound that is evaluated for drug testing purposes. One of the main differences between hemp and marijuana is the concentration of CBD vs. THC that each contains. Hemp, by definition (as noted in the Farm Bill), contains 0.3% or less of THC. Marijuana, can have THC concentrations of up to 20%. CBD can be and is derived from both plant species, but for purposes of technical legality, only hemp-derived CBD is legal under the Farm Bill. To obtain marijuana-derived CBD, in states where marijuana is not legal, an individual would require certification to use medicinal marijuana.

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With that mini-science lesson out of the way, what does all of this mean for employers?

Certain CBD products – oils for example – are marketed and sold as dietary supplements that can combat a variety of ailments, for example anxiety and insomnia. The FDA does not regulate the safety and purity of dietary supplements. Accordingly, there is no governmental organization confirming that the CBD product contains (or rather only contains) the ingredients contained on the label. Relative to employer drug testing concerns, there is no governmental organization checking that CBD supplements are actually derived from hemp and do not contain more than 0.3% THC. Thus, there is a risk that the CBD supplement is not what it says it is and an employee who is “only using CBD,” may nonetheless test positive for marijuana on a drug test. Indeed, several lawsuits have been filed against CBD manufacturers arguing that products marketed as containing only CBD and being THC free, have resulted in employees failing employer required drug tests.

Accordingly, employees using, or claiming to use, “only CBD” has created a haze of uncertainty for employers and how such claims, which typically follow a positive drug screen, should be handled.

For purposes of employees regulated by the U.S. Department of Transportation (i.e. school bus drivers and truck drivers), the answer is clear. Last month, the DOT issued a “CBD Notice” stating plainly

The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

In issuing this Notice, the DOT referenced cautionary statements issued by the FDA:

The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.

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So, for DOT regulated drug testing, the answer is clear – CBD is not a get out of jail free card. Regardless of the alleged reason for the positive test, a positive test for marijuana will be a positive test for marijuana. Employees in DOT regulated positions should act accordingly.

But what about non-DOT regulated employees? The answer is not as clear, but there are a few common sense principles that employers can use to address and hopefully diffuse this issue. First, as we’ve discussed in prior blog posts, employees who are certified under state law to use medical marijuana have certain protections (protection against discrimination, for example). As a result, many employers have modified their drug testing policies to include exceptions that apply to employees who are certified to use medical marijuana. Because an employee who is using an over the counter CBD supplement likely is not certified to use medical marijuana, that employee would not be protected by the state medical marijuana act. Accordingly, employers may want to include a notation in their drug testing policies that the term “medical marijuana” refers only to marijuana that is obtained in accordance with a state medical marijuana program.

Second, employers should remember that employees don’t know what they don’t know. If an employee does not realize that using CBD oil that he obtained online could jeopardize his employment, he is going to be quite upset when he tests positive for marijuana and is fired. Accordingly, employees should be advised that there is a risk to using CBD products, that drug testing facilities will not consider alleged CBD use as a legitimate medical reason for a positive drug test and that, if an employee tests positive and does not have a medical marijuana card, the company may treat the positive test as a violation of the drug testing policy.

Finally, employees who question an employer for implementing the above-referenced practices could be directed to the FDA issued guidance on CBD products.

We’ve said it before, and we’ll say it again, if you have not revised your drug testing policy to address the issues created by medical marijuana and CBD, there is no time like the present. Should you need assistance with your policy revision or with crafting appropriate notices to your employees, do not hesitate to contact any member of the McNees Labor and Employment Group.

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