The ABC’s of CBD: What Employers Need to Know
With the legalization and decriminalization of hemp in 2018 by the 2018 Farm Bill, we are seeing an explosion of CBD products in markets all across the U.S. You can buy CBD lotions, oils, tinctures, vapes, and even CBD-laced foods. (Although there is a bill in place to ban CBD-laced food and beverages.) CBD (short for cannabidiol) is one of many cannabinoids, or molecules produced by the cannabis plant. Unlike its infamous sibling THC (or tetrahydrocannabinol), CBD does not have psychoactive effects that cause the “high” associated with cannabis. Advertised as wellness products, CBD products claim to naturally cure anxiety, pain, depression, high blood pressure, spasms, acne, and schizophrenia, and even stave off diabetes. (https://www.healthline.com/nutrition/cbd-oil-benefits#section6.) (This article makes no comment on the validity of these health claims.) Given that these products are sold everywhere from CVS to your local supermarket, they are presumably legal, but are all CBD products legal? And can they affect the results of a drug test? It turns out the answer isn’t a simple “yes” or “no.”
Are All CBD Products Legal?
CBD products are legal to the extent they are made from hemp and contain less than 0.3% THC. Hemp and marijuana are the same cannabis plant except that hemp has a THC concentration of less than 0.3%. (21 U.S.C. § 802(16).) Unlike marijuana, which is Schedule I controlled substance regulated by the Drug Enforcement Agency, hemp is not a controlled substance at all. (21 U.S.C. § 812 under Schedule I (c)(17).) Hemp is an agricultural product regulated by federal and state departments of agriculture. Thus hemp-derived products (such as CBD products) are similarly “legal” (that is, they are not illicit drugs). However, both CBD and THC occur naturally in all cannabis plants, and it is impossible to predict the THC levels in a given plant.
This brings us to the main issue with trusting CBD products: lack of enforcement. Researchers tested the accuracy of CBD product labels and found that a significant percentage of tested products contained over the legal amount of THC and most of the labels under- or over-represent the amount of CBD. (One study published in the Journal of American Medical Association found THC in 18 of 84 products with an average concentration of 0.45%. In a different study, researchers at the University of Arkansas found that in 3 of 25 products contained over 0.3% THC and 4 others contained synthetic cannabinoids.) While the U.S. Food and Drug Administration (“FDA”) does some enforcement (see: list of warning letters issued by FDA), its ability to crack down on this burgeoning market is limited. In California, the responsibility of enforcing this 0.3% THC limit in CBD products falls on local authorities.
Trusting what’s on a label always involves risk, but some companies are more transparent than others. For example, some manufacturers provide batch numbers for each of their products that allow you to look up CBD and THC testing results for your specific product.
Will CBD show up on a drug test?
Drug tests, such as those used by employers for screening safety-sensitive employees, look for the presence of THC to determine whether a subject has used marijuana. CBD products can result in a positive drug test if the product is tainted or contains more than the advertised amount of THC. It can also happen even if an employee has only used CBD products with less than 0.3% (or even 0.01%) THC. THC accumulates in the body and is detectable for up to 30 days, so with repeated use, consuming even trace amounts over time may result in a positive drug test. In a study by a team at John Hopkins Medicine, 2 of 6 participants who used CBD products with 0.39% THC tested positive. (https://www.sciencedaily.com/releases/2019/11/191104141650.htm)
Even more troubling, in 2012 researchers found that a common testing method used in urine tests could not differentiate between CBD and THC. This can result in a false positive for marijuana even though an employee has consumed only pure, legal CBD products. (See article by the New York Times: https://www.nytimes.com/2019/10/15/science/cbd-thc-cannabis-cannabidiol.html.) Once a drug test comes back positive, employees (and employers) may have little recourse for challenging this result outside of the courts. Basically, no matter how careful you are, using CBD products comes with a risk for drug-tested employees.
As an employer, what can you do?
-Educate your employees as to the risks of using CBD products.
-Talk to the vendor or laboratory that conducts drug tests and ask whether the specific testing method they use can differentiate between CBD and THC and whether they have procedures in place for identifying false positives caused by CBD.
CBD: What employers need to know
Employers don’t have to be operating in states where marijuana is now legal to be impacted by its changing status. Cannabidiol, a compound derived from the cannabis plant, is already available legally in every U.S. state. CBD oil and products containing CBD are impacting workplace drug policies in ways that are still unclear.
Confirm BioSciences, a national provider of drug testing supplies and laboratory services, has issued a report on the effect of CBD. As the medical review officer of the organization, here I answer the most common questions employers ask about this increasingly popular substance.
Q: What exactly is CBD?
A: CBD, the shortened name for cannabidiol, is an extract from cannabis, the plant that produces marijuana. It can also be obtained from the hemp plant, another form of cannabis that has extremely low levels of THC, the substance that instills a high. Hemp became legal to grow commercially in every U.S. state in 2018.
Q: What are the legitimate uses for CBD? Are there any uses that can be prescribed by a physician?
A: From a scientific perspective, the only medical condition for which CBD has been approved is a certain type of seizure disorder. The medication is called Epidiolex, and it was approved in 2018. As far as other conditions for which medical providers may recommend CBD oil, the problem is that there have been a very limited number of medical studies, with conflicting results. We’re simply not there yet in terms of scientific support.
Q: Will using CBD compromise employee performance in any way?
A; To answer this, we run into the question of whether the CBD is 100 percent pure, which is defined as containing less than 0.3 percent THC. If a product contains pure CBD, there should not be any employee performance issues. The challenge is that the vast majority of CBD products are not pure. Up to 70 percent of CBD products are mislabeled. According to a recent J ournal of the American Medical Association study in which 84 different CBD products were analyzed, THC was present in 18 of the products in varying amounts.
Q: Are there any circumstances or occupations in which CBD should never be used by employees?
A: If the product used by the employee meets CBD purity standards, there should be no physical or mental impairment. The real issue is purity.
Q: How long will CBD stay in a person’s system?
A: It depends on the individual. For some, CBD oil will remain in the system for two to five days. For others it can take weeks to resolve. The typical time is around one to two weeks.
Q: If CBD is legal, why are workers using CBD-infused products failing drug tests?
A; The challenge with CBD in the workplace is that, either knowingly or unknowingly, people are using CBD tainted with THC. So people might be buying a product with CBD to help them sleep, and if that product also contains THC, it may be the THC that is impacting their sleep instead of the CBD.
Q: What can be done to ensure that CBD-infused products are pure and don’t contain THC?
A: Currently no governing or regulatory body is tasked with ensuring the purity of CBD. The oversight just isn’t there to ensure that when people are buying a CBD product, they are getting pure CBD oil. For workers and employers to be adequately protected, this situation has to change.
Q: If an employee using a CBD, or a CBD-infused product, fails a drug test, what then? Whose responsibility is it to determine if the employee hasn’t violated workplace policies?
A: It’s not the employer’s responsibility to ensure that drugs do not show up on an employee’s drug screen. The employer’s role is simply to make sure that the chain of custody is intact. If the individual has signed documentation confirming that the sample provided is theirs and the sample was sealed in their presence, the employer should not be held liable.
There is another issue, however, due to the changing legality at the state level for recreational and medicinal marijuana. In states where marijuana is legal, a company may still be able to have a zero-tolerance policy (please refer to your state’s specific law regarding recreational and/or medical marijuana use). And for companies subject to federal standards, marijuana is still a Schedule 1 drug under the U.S. Controlled Substances Act. It’s in those states in which marijuana has been legalized recreationally that a many employers look for guidance.
Q: What steps should employers be taking in regard to CBD?
A: For employers with a stated drug policy, it makes sense to educate their workers about the risks inherent in CBD oil. If they don’t feel comfortable providing that information firsthand, they should partner with a qualified third party who can provide it. The employer should never put itself in the position of contradicting an employee’s physician. That way if an employee is considering using a CBD product, they can discuss their employer’s drug testing program with their doctor.
Q: Should employers be concerned about the proliferation of CBD as a legal substance?
A: It would be wise for employers to educate their workers about CBD. The ultimate responsibility, however, lies with the employee. It’s up to every individual to know exactly what they’re putting in their body and what may happen as a result.