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► Employment Laws Fail To Keep Up With Legalization Of Marijuana And CBD

When I stand in the checkout line at our local Whole Foods, CBD products are within easy reach. If I buy the CBD ointment, could I run into any problems at work?

Employers, Employees Alike Are Left in Vulnerable Position

As states around the country continue to legalize marijuana and approve the use of related products such as cannabidiol (CBD), for both medical and recreational purposes, the aftermath has left many employers grappling with contradictions in the various laws.

The confusion isn’t limited to discrepancies between state and federal law. As many states have moved to implement new regulations, some derived from citizen-initiated referendums, it’s becoming increasingly clear that many of the new laws aren’t as comprehensive or far-sighted as one might hope. Consequently, employers and employees are left in a vulnerable position, particularly with regard to CBD products.

CBD comes from the hemp plant and may contain levels of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana plants. Hemp is a type of cannabis plant that should contain no more than 0.3% THC. At that level, your drug test should be negative. The control and regulation of CBD products, however, is scarce and sometimes nonexistent. The results are higher THC content in CBD products and sometimes serious consequences for employees.

Some states have legalized marijuana for both medical and recreational use. For example, Maine is one such state. In September, the Portland Press Herald reported that a Maine woman had lost her temporary position at a healthcare company because of her CBD use after managers had encouraged her to apply for a full-time position. Because (1) the company receives federal funding and (2) marijuana is a Schedule I illegal drug under federal law, the company tests potential new hires for pot.

The woman had informed the employer of her CBD use before beginning her temporary position, and the CBD supplement company claimed the product contained less THC than the federal legal limit. Nevertheless, the employee’s CBD use resulted in a positive THC test and her termination for a failed drug test.

Tough Question for Employers

Given the conflicts between state and federal law, employers are left wondering how best to handle CBD and medical marijuana. It’s a particularly thorny question if an employee isn’t a medical marijuana patient.

Under Maine law, a “qualifying patient” is a person who has a “valid written certification regarding medical use of marijuana.” It’s unlawful for an employer to refuse to employ a “qualifying patient” solely because of the person’s status as a “qualifying patient” unless federal law requires otherwise. So, if an employee has a certification as required by Maine law, a positive test alone shouldn’t prevent his employment. For safety-sensitive positions, it may still be legal to deny the applicant the job.

There is a distinction between over-the-counter (OTC) CBD, which can be obtained by anyone and is unregulated, and some medical CBD, which is approved by the U.S. Food & Drug Administration (FDA). The former isn’t supposed to contain more than 0.3% of THC. If your employee is simply using OTC products and consequently tests positive, and she isn’t a qualifying patient, she is unlikely to be protected by most states’ medical marijuana laws. If she is using the CBD to treat a disability, however, you’ll need to consider her rights under the Americans with Disabilities Act (ADA) and state disability laws.

3 Suggestions

While new state laws and regulations across New England are focusing on marijuana, the burgeoning CBD industry has largely been overlooked. Here are some final notes to consider:

  • If you are an employer that tests for drugs, you may want to educate your employees about CBD, as you don’t want them to fail the tests or be impaired by a CBD product that contains higher levels of THC.
     
  • You want your supervisors to understand that CBD isn’t marijuana and to be educated about the differences.
     
  • Lastly, consider whether your workplace drug policies need to address CBD. As always, put safety first.
     

By Peter Lowe Mr. Lowe is a partner with the law firm Brann & Isaacson in Lewiston, Maine.
 

[3/2020]

 

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