CBD & The Workplace, A Word to The Wise

Federally legal CBD products may, under some circumstances, cause consumers to fail drug tests. An employer’s right to terminate employee-consumers on that basis is not prohibited by federal law, including the Americans with Disabilities Act.

Many of us are familiar with CBD products. In some states, they can be found in grocery stores, convenience shops, independent storefronts, and farmers markets, as well as easily purchased online. CBD products take the form of lotions, oils, gummies, chocolates, beverages, and just about anything else that is consumable.

CBD’s use is widespread. According to a recent survey by Healthline.com, 25% of respondents were either currently using CBD products as part of their lifestyle routine or were interested in trying them. CBD is commonly used by consumers to help relieve a variety of physical and psychological ailments, including depression, anxiety, pain, and inflammation.

Despite its relatively wide availability and current federally legal status, however, a person’s use of CBD can still have negative consequences, such as causing them to be terminated from their job.

First, what is CBD? CBD is short for “cannabidiol,” the name for a specific cannabinoid found in the Cannabis sativa plant. The term “cannabinoid” refers to any of the various chemical constituents found in cannabis; over 100 cannabinoids are found in the cannabis plant. Cannabinoids interact with a human’s endocannabinoid system, where neurotransmitters bind to cannabinoid receptors throughout the body.

Under present federal law, when CBD is extracted from hemp, it is federally legal. While CBD does not produce a “high” effect, as the term is commonly understood, studies show that it does affect the mind and body. Indeed, CBD is the active ingredient in Epidolex, an FDA-approved prescription drug used to treat people one year of age or older.

The most well-known cannabinoid, and cannabinoid that most people associate with marijuana, is delta-9 tetrahydrocannabinol (D9 THC). D9 THC is best known for its psychoactive qualities and is the cannabinoid that distinguishes federally legal hemp from its still-very-much-federally illegal sister marijuana under present law. Any Cannabis sativa plant or product containing more than 0.3% D9 THC is federally prohibited as a schedule I substance under the Controlled Substances Act (CSA).

A third cannabinoid that has made the news lately is delta-8 tetrahydrocannabinol (D8 THC). It is yet another psychoactive cannabinoid that naturally occurs in the Cannabis sativa plant but only in very small amounts – meaningless amounts from a consumer’s perspective. However, D8 THC can be created from other federally legal cannabinoids, such as CBD.

Marijuana and hemp are both the Cannabis sativa plant. The distinction is a legal fiction: Cannabis sativa is considered “marijuana” when the plant, whether growing or not, contains a D9 THC concentration of more than 0.3% by dry weight. (Dry weight is the measurement of the plant when all water is removed.) By contrast, Cannabis sativa is considered “hemp” when the plant contains a delta-9 THC concentration of not more than 0.3% by dry weight.

The 2018 U.S. Farm Bill, signed into federal law on December 20, 2018, removed “hemp” from the CSA, which had the effect of permitting the cultivation, processing, sale, and transport of the hemp plant or any derivative thereof (and in compliance with state law). “Hemp,” as defined by present federal law, however, includes far more than live or dried hemp leaves or “flower”:

The plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,...