Marijuana and hemp both contain Cannabidiol (“CBD”), which is now being marketed and sold in a variety of forms, including oil (the most popular), health and beauty products, vapors, beverages, and infused edibles, such as chocolates and gummies. CBD is a chemical found in marijuana and its close relative, hemp. However, pure CBD does not contain tetrahydrocannabinol (“THC”), the psychoactive ingredient found in marijuana that produces a high. In addition, pure CBD usually will not report a positive test result for marijuana because drug tests typically look for THC levels that are too low to be detected from pure CBD. For this reason, according to the National Institute on Drug Abuse, employees are generally not at risk of becoming intoxicated or impaired if they use pure CBD. However, if the CBD product contains enough THC, it is entirely possible the product could cause a positive drug test result for THC.
In Kansas, non-hemp based CBD is legal if it contains no THC. On July 1, 2019, Claire and Lola’s law went into effect in Kansas which acts as an affirmative defense to those with a debilitating medical condition for possession and use of CBD with THC in it. The law limits the protection to CBD containing up to five percent (5%) of THC. Although the 2018 Federal Farm Bill legalized hemp based CBD oil with less than three percent (3%) THC, the FDA does not regulate CBD products, so applicants and employees cannot guarantee that the CBD product they are using contains either no THC or THC under a certain percentage determined by state law. In some states, CBD may contain up to five percent (5%) THC.
As a result, employers may not be able to determine if an employee or applicant is using marijuana or using what they genuinely believe to be a pure CBD product that actually contained testable amounts of THC. In states that do not have medical marijuana laws, such as Kansas, the burden falls squarely on the applicant or employee to prove they are not using marijuana. However, in medical marijuana states, the employer may (depending on the state at issue) have a duty to accommodate the underlying medical condition prompting CBD or medical marijuana use or may be restricted in its ability to act based solely on a positive marijuana test result.
Employers should review the laws of the states in which they operate and exercise caution when dealing with applicants and/or employees using CBD. In addition, employers should also consider revising their policies to address CBD use.
For more tips on addressing CBD in the workplace please contact HR Partners at 785-233-7860. In addition, we would be pleased to assist you with any other HR matter your business may need guidance with.
Sources: The Stoned Age: What the CBD Craze Means for Employers and Their Substance Abuse Policies, Seyfarth Shaw, Lexology (June 27, 2019); K.S.A. 65-2002; K.S.A. 21-5706.