Cannabidoil, or CBD, is derived from the hemp plant, a relative of the marijuana plant. CBD oil has seen a surge in popularity in the recent years among customers who use it for treating various conditions such as anxiety, insomnia and chronic pain. However, its growing popularity comes with many questions for employers.^[1] At times, CBD oil can contain traces of THC, which is considered a controlled substance, and can result in positive drug tests. However, CBD oil by itself does not usually cause a high. CBD oil is legal in all 50 states with varying degrees of restrictions, but its legality will likely change over the coming years. There is very little guidance from the courts on whether employers should accommodate CBD use when creating their drug policy.

In Pennsylvania, an employer sought judicial review of an unemployment order that held the employee was not ineligible for unemployment compensation after the employee admitted to use of CBD oil, tested positive for marijuana and was terminated.^[2] The employer had a policy providing that being under the influence of drugs or having drugs in one’s system while at work was ground for termination. The policy defined “drug” as “any substance producing effects on the central nervous system, or any controlled substance.” The employee disclosed she took CBD oil to manage her cancer-related symptoms before being administered the drug test. The court found the employee did not violate the drug policy because the CBD oil ingested was not a controlled substance, and the employer presented no evidence the oil ingested would affect the employee’s performance in ways prohibited by the policy. 

In North Carolina, a woman was fired from her job for using an over-the-counter CBD oil after a drug test revealed THC in her system.^[3]  The woman used CBD oil to treat chronic pain from fibromyalgia, which had been cleared by her rheumatologist and disclosed to her employer. 

In a lawsuit claiming wrongful termination and damages, the woman noted that the low levels of THC did not meet the threshold level of being impaired under federal Department of Transportation regulations. The lawsuit claims that due to the low amounts of THC, the woman tested negative for purposes of driving a commercial vehicle and was not impaired.^[4] The court held that CBD oil is a legal product under North Carolina law, even if it contains small amounts of THC that would otherwise be considered a controlled substance. 

Court decisions such as these create a great deal of questions for employers and their drug policies. Should employers who have a zero-tolerance drug policy accommodate employees who use CBD products? What should an employer do if an employee tests positive on a drug test and blames the use of CBD products which are legal? Does the level of THC in an employee’s system have any weight on an employer’s decision to terminate? The answer to these questions will continue to evolve as we learn more about CBD products. Like many other states, North Carolina’s laws are likely to evolve as we learn more about CBD.

While many CBD products do not contain enough THC to result in a positive drug test, CBD products are not regulated in the U.S., which means there is no way to ensure THC levels remain low in products. Employers should educate employees on this issue and carefully examine the CBD and controlled substances laws in their jurisdiction. Handling positive drug tests where an employee blames the use of a legal CBD product may need to be evaluated on a case-by-case basis. Employers should consult with their employment attorney before revising their drug policy. 

^[1] Peter Grinspoon, Cannabidiol (CBD) – What We Know and What We Don’t, Harvard Health Publishing, https://www.health.harvard.edu/blog/cannabidiol-cbd-what-we-know-and-what-we-dont-2018082414476 (last visited Sep. 30, 2020). 

^[2] Washington Health Sys. v. Unemployment Comp. Bd. of Review, 231 A.3d 79 (Pa. Commw. Ct. 2020).

^[3] Joe Marusak, Woman Used Over-the-Counter Oil to Treat Chronic Pain. It got her Fired, Lawsuit says, The Charlotte Observer, https://www.charlotteobserver.com/article232244097.html (last visited Sep. 30, 2020). 

^[4] Smith v. Manheim Remarketing, Inc et al, No. 5:19CV00086 (W.D.N.C. Nov. 25, 2019).