CBD Trend: What Employers Need to Know
The use of cannabidiol (CBD) is growing in popularity, leaving some employers wondering whether they can limit employees' use. Here we answer frequently asked questions about CBD.
Q: What is CBD?
A: CBD is one of the compounds found in cannabis plants. The most well-known cannabis compound is tetrahydrocannabinol (THC). Unlike THC, though, CBD has little or no psychoactive properties on its own. CBD can be derived from two types of cannabis plants: hemp plants and marijuana plants. In the last few years, there has been a proliferation of products containing CBD in the United States.
Q: Is CBD legal?
A: This is a tricky question to answer. CBD derived from marijuana plants is illegal under federal law, and CBD derived from hemp plants isn't uniformly legalized. The 2018 Farm Bill removed certain hemp-derived products from the federal Controlled Substance Act, but the Food and Drug Administration (FDA)'s position is that it remains unlawful to introduce CBD into the food supply, claim CBD is a dietary supplement, or market CBD for use in the cure, treatment, or prevention of diseases without FDA approval. However, many states permit the use of CBD and allow for the sale of CBD. Given this complex legal landscape, employers should consult legal counsel with specific questions about the legal status of CBD.
Q: Can an employer prohibit employees from using CBD outside of work?
A: This is also a tricky question to answer. If the type of CBD at issue is considered lawful under federal and state law, employers would have difficulty prohibiting employees from using it while off-duty. In states with medical marijuana laws, the use of CBD outside of work could possibly be protected under state law. For example, several states that permit the use of medical marijuana prohibit employers from discriminating against medical marijuana users for off-duty use or taking adverse action against an individual because they test positive for medical marijuana. These employment protections could extend to CBD.
Q: Can I prohibit employees from using CBD at work?
A: Employers can generally prohibit employees from using or possessing the type of CBD that has not been legalized in the workplace, during work hours, and on company property. Employers should also keep in mind that under certain circumstances, requests for CBD may trigger a conversation about whether the employee has a disability that would require a reasonable accommodation.
Q: Could an employee fail a drug test because of CBD use?
A: Drug tests typically measure the amount of THC. Since CBD products may also contain THC, it is possible that the use of these products could result in a positive test, depending on the level of THC in the CBD products, the amount of CBD consumed, and other factors.
In such cases, depending on the state and applicable law, employers may be required to:
- Give the individual the opportunity to produce proof that a positive drug test result was due to lawful CBD use; and
- Conduct an individualized assessment as to whether the use of CBD would interfere with the individual's essential job duties and responsibilities and/or cause a direct threat to their or others' health and safety.
Q: What can I do now?
A: Work with your legal counsel to review applicable laws and come up with a plan for how you will respond before an issue arises. This is an area of the law that continues to evolve, so closely monitor federal and state laws and keep your policies and practices up to date with any changes.
