Employers who are screening for tetrahydrocannabinol (THC), the psychoactive component in marijuana, are learning that that some cannabidiol (CBD) products contain trace amounts of THC, resulting in a positive test for the substance. Notably, urine drug tests, the kind most commonly used by employers, screen for a compound the body makes when it breaks down THC. The test will not detect this substance solely from the breakdown of CBD. In addition, CBD products typically contain less than 0.3% of THC, but that doesn’t preclude positive test results for THC. If a large amount of CBD product is consumed in a short period of time or if a CBD product has concentration greater than 0.3% THC, the test will be positive for THC. In addition, there have been reports that of CBD products tainted with THC.
In the private sector, employers likely will not distinguish CBD use from marijuana when workplace drug policy provides for termination in the event a drug test reflects the presence of THC. A federal court in Indiana dismissed an employee’s lawsuit after he tested positive for marijuana due to alleged CBD use and claimed that his termination was discriminatory on the basis of a disability. Rocchio v. E&B Paving, LLC, and Int’l Union of Operating Engineers Local 103, Case No. 1:20-cv-00417 (S.D. Indiana March 31, 2022).
Rocchio was an engineer who was subject to random drug testing under his employer’s drug testing policy. The policy required testing for marijuana and provided for termination in the event of a positive drug test result. When he tested positive, he claimed that it was due to his use of CBD oil. Still, he was terminated from his employment in accordance with the Company’s policy.
Rocchio alleged that the employer and the union violated the Americans with Disabilities Act by terminating him and failing to rehire him. He alleged that the employer’s policy of terminating all employees who test positive “categorically regards” them as abusers of illegal drugs and also regards them as disabled because safety was the rationale for the policy. The court did not agree and noted that “it did not follow” that an employer conducts drug testing believes that everyone who tests positive is disabled under the ADA. Moreover, there was no evidence that the employer believed that Rocchio was disabled, or that he was terminated because of any perceived disability.
At the state level, the West Virginia Supreme Court upheld a coal miner’s suspension after use of CBD led to a positive test result for cannabinoids/THC. W.Va. Office of Miners’ Health and Safety & Training v. Beavers, 2022 W.Va. LEXIS 323, 2022 WL 1223230 (April 5, 2022).
Beavers, a West Virginia coal miner, needed a sleep aid and, was assured by a pharmacist that CBD oil would not result in a positive THC test. However, a day after he took the CBD oil, the miner was required to submit to a random drug test, which came back positive. The Office of Miners’ Health and Safety & Training (OMHST) suspended the miner for six months, as required by State code.
The miner appealed the suspension to the Coal Mine Safety Board (the Board), an administrative tribunal. At the hearing, the miner was advised of his option to have the split sample tested at another certified laboratory but declined this option. Dana Carasig, M.D., a medical review officer, testified that the test did not distinguish between THC and CBD. She further testified that the test is a “confirm result used” for detecting the “active THC constant.” Following the hearing, the Board reinstated the miner’s certifications, finding that he had consumed a CBD product, which is not a controlled substance under the statute. The OMHST appealed the Board’s decision to the Circuit Court of Kanawha County, which denied the OMHST’s appeal. The OMHST then appealed the Circuit Court’s ruling to the State Supreme Court, which upheld the original decision of the OMHST to revoke the Beaver’s mining certifications for six months.
The Court found that there is no requirement that the OMHST prove that the person abuses alcohol or drugs, only that they tested positive for the substance. The Court noted that the miner’s claim that he used CBD, a legal over-the-counter substance, did not constitute a defense to his positive test, despite the fact that his consumption of CBD unintentionally subjected him to THC. The court also dismissed the argument that the CBD is a legal substance, noting that alcohol is also legal but still on the list of banned substances.
CBD use has also come under review by the federal government, which has issued policy and rules at different agencies. Although Federal Drug Administration does not certify amounts of THC in products, it has issued several warning letters to companies because their products contained more CBD than indicated on the product label. The Department of Defense has outright banned CBD use by military members, noting that CBD can be derived from marijuana or hemp. The Department of Defense has also noted that the use of CBD products, including those derived from hemp, may lead to a positive urinalysis test for THC. The Department of Transportation has issued a notice regarding on product definitions, testing requirements and noting that the use of CBD products can lead to positive drug test results.
Our lawyers have experience and knowledge of the federal and state laws that impact the legality of employment drug screening programs. Feel free to contact us for consultation and/or assistance with employment drug screening issues at The Law Office of Adele L. Abrams, P.C., 301-595-3520.