By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
I have previously written about the meteoric rise in popularity of cannabidiol (CBD) — a derivative of cannabis. Specifically, I recounted how CBD is being used worldwide to treat a variety of conditions, including anxiety, sleep disorders, chronic pain, depression, seizures and autism, among others.
In those articles, I explained how CBD products were on uncertain legal footing in the United States. In 2018, Congress passed the Agriculture Improvement Act (a.k.a. the “Farm Bill”), which decriminalized certain forms of cannabis, including Tetrahydrocannibinol (THC), the compound in some cannabis plants that is psychoactive and causes users to experience a “high.”
The Farm Bill removed some cannabis products from the Controlled Substances Act for the first time. Hemp, a category of cannabis varietals that contains THC concentrations of 0.3 percent or less, was removed from the list of illicit substances under the Controlled Substances Act (CSA). Marijuana, processed from cannabis plants with THC levels greater than 0.3 percent, is still classified as an illegal substance under federal law.
FDA Has Been Painfully Slow in Approving CBD Products for Market
However, the Farm Bill still preserved the Food and Drug Administration’s (FDA) authority over the marketing and sale of CBD-derived products. And so far, the FDA has been painfully slow in approving CBD products for market.
The FDA has approved only one CBD-derived product for marketing, the anti-seizure medication Epidiolex. All other CBD products, including food and supplements, are technically prohibited by the FDA.
This hasn’t stopped business and industry from taking advantage of the demand for CBD. The market is expected to hit $16 billion by 2025. The FDA has issued warning letters to vendors of CBD about the legality of their products, but so far that has done little to slow CBD’s popularity.
Additionally, states are still free to regulate the sale and use of CBD. As such states have adopted a wide variety of stances on the subject, ranging from zero restrictions to flat-out bans.
So let’s focus on the implications of CBD use by employees, and whether such use can be the basis for adverse action by an employer.
Employers Are Free to Hire and Fire for Any Reason that Is Not Illegal Discrimination
First, it’s important to remember that employers are free to hire and fire for any reason or no reason at all; that is, provided that the reason for termination is not illegally discriminatory (i.e., discrimination based on a protected class). For example, many employers today have established tobacco-free policies that require employees to abstain from all tobacco products, even during non-working hours. Employers are free to do this because tobacco use is not a protected class and is not correlated with a protected class.
Similarly, CBD use is not a protected class. It isn’t likely to be correlated with protected classes such as race, color, religion, gender or national origin. However, unlike tobacco, CBD use could potentially be correlated with an employee’s disability status, which is protected by law.
Many of the conditions that CBD is commonly used to treat — including autism, seizures and post-traumatic stress disorder — have been recognized as disabilities under the Americans with Disabilities Act (ADA). So an employer who takes adverse action against disabled employees who use CBD might risk discrimination claims, depending on myriad other factors as well.
Where CBD Is Legal for Medical Purposes, An Employee’s Use Is Ostensibly Legal
One consideration is the legality of CBD in the state where the employee works. If possession and consumption of CBD is illegal in that state, then an employee’s CBD use could be construed as criminal behavior and potentially used as grounds for termination or refusal to hire.
What if the employee has a prescription for use from a doctor? Again, it depends. If CBD is legal for medical purposes in a state and the doctor has issued a prescription in that state, then the employee’s use is ostensibly legal. Any adverse action against the employee could be viewed as a violation of the ADA.
But what if the employee’s use of CBD impairs her ability to do the job safely or effectively, even though it is legal with a valid medical prescription? This point complicates matters further. If an employer can show that, even after reasonable accommodations required by the ADA, an employee is unable to perform the basic functions of her job while taking CBD, then the employer is not obligated to retain that employee.
However, a strong word of caution is warranted here. First, it’s worth reiterating that CBD is not psychoactive. Therefore it should not — in theory — inhibit anyone’s abilities to perform most job functions. Second, even in the most extreme cases, employers should probably try to reassign employees taking CBD for their disability to different job roles before dismissing them.
For example, suppose an employer wants to prohibit employees who are required to operate dangerous, heavy machinery from using any substance or medication on the grounds that lucidity is critical to safety. This is understandable. After all, even over-the-counter products like cough medicine commonly caution consumers against driving or operating heavy machinery immediately after consumption.
However, before resorting to termination that employer should probably try to simply place an employee who takes CBD for a disability in a position with fewer extreme safety implications. For example, if the employee in question usually operates a forklift, maybe he could be assigned to office work, answering phones or performing other duties that are not dangerous.
A Drug Test Is the Most Common Way to Find Out about an Employee’s Substance Use
Unless an employee divulges to an employer that she is taking a drug or medication, a drug test is the most common way an employer might find out about an employee’s substance use. Federal law is relatively silent on drug testing, save for requirements from a few agencies that employees in certain industries be drug tested for safety reasons.
For example, the Department of Transportation requires truck drivers and other transportation workers to be drug-tested. The Nuclear Regulatory Commission also requires drug testing for atomic energy plant personnel.
In terms of state law, different states have different policies concerning the use of drug tests. Most states permit drug tests at the time of hire, but several states also allow random testing during employment.
Regardless of the circumstances, most drug and substance tests used in employment do not test for CBD. So in theory, an employer should not be able to detect an employee’s CBD use through a drug test.
However, most drug tests commonly include a panel for THC metabolites. In addition, because CBD can contain as much 0.3 percent THC by weight, this could potentially be a worry for employees who have submitted to a drug test.
For example, in a Johns Hopkins study, six people were given doses of CBD in different forms, and two of them tested positive for THC metabolites on a drug panel. THC metabolites can build up in a person’s system, so the longer and more often an employee ingests CBD, the higher his THC metabolite concentrations are likely to be.
CBD use is obviously a complicated subject right now. The status of legal and medicinal use of CBD is evolving rapidly at the state and federal levels. Employers and employees should understand the laws and regulations related to CBD in the workplace, and be prepared for honest conversations about them when necessary.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.