Cannabidiol (known as “CBD”) is a compound naturally found in marijuana and hemp. For commercial use, it usually is extracted from hemp and combined with oil for vaporizing. It also can be found in creams and other products. It is being marketed as a treatment for pain, inflammation, anxiety, insomnia, epilepsy, and other illnesses.
In 2018, the federal farm bill removed hemp and CBD from the coverage of the Controlled Substances Act’s Schedule I drug list. This means that it is legal to market and sell at the federal level—even though some state laws restrict its sale and use. Its use is expected to grow exponentially over the next few years. Little is known about its actual effectiveness for the treatment of pain or other ailments because of the lack of studies. There is strong scientific evidence behind its use for epilepsy and seizures.
Why Should Employers Care?
CBD oil will not result in a positive drug test. Why? “Hemp” is required to contain a THC concentration of no more than 0.3 percent. This means that, even daily use, generally would not result in a positive drug test because a drug test looks at the THC concentration in urine. Marijuana potency can range from 0.4-25% THC. Further, CBD oil does not have the psychoactive effect of marijuana and has no presently known impairing effects.
CBD and hemp, however, are unregulated by the FDA. That means that an employee could unknowingly acquire some illegal CBD oil derived from cannabis (marijuana) that contains a much higher concentration of THC. It would be impossible to know if the positive drug test was the result of illegal CBD oil or actual marijuana use.
Is There a Duty to Accommodate CBD Oil Use?
Employers probably do have to accommodate CBD oil use where it is used as a treatment for a qualifying disability under the Americans with Disabilities Act. Unlike medical marijuana, where most employers do not have to accommodate its use because it is illegal under federal law, CBD oil is a legal product. (There are a few states where court decisions have held that employers must accommodate off-duty medical marijuana use.) Employers likely must allow its use off-duty and on duty, to the extent allowed for other over-the-counter drugs. If an employer prohibits all vaping, the employer would need to engage in the interactive process with the disabled employee to determine if there is a duty to accommodate CBD oil vaping or if another reasonable accommodation would suffice.
Employers would be smart to review their drug-free workplace policies and drug testing programs and consider the impact of CBD oil.