Over the past year, we have encountered a growing number of claims raised by applicants and employees who allege that positive drug test results for marijuana were actually the result of their use of legal hemp products containing CBD. CBD is the nonintoxicating component that is derived from cannabis or hemp. Federal law allows sale of hemp-based products that contain less than 0.3% of THC, the active ingredient in marijuana. These employees claim that the positive test resulted from use of these legal CBD products.

Employees seeking to challenge employment decisions based on these test results have had a difficult time articulating a viable legal claim. Allegations that the test results were faulty are better directed against the testing laboratory than the employer. States that have not legalized use of medical marijuana such as North Carolina and South Carolina are unlikely to recognize a legal action based on alleged use of CBD for medical reasons.

The claims that have the best chance of surviving legal scrutiny are those that allege violation of a state lawful products use statute. These laws were generally enacted in the 1990s in states such as the Carolinas that had a significant tobacco industry. At that time, some employers attempted to control escalating medical insurance costs by refusing to hire smokers, or taking disciplinary action against employees who smoked outside of work. Many of these laws prohibit employers from refusing to hire or disciplining persons based on their off-duty use of any legal product, not just tobacco.

These laws could be applied to use of legal CBD products. The employee could claim that the use of legal CBD resulted in a positive test result for THC even though the levels of that substance fell under the federal threshold. These lawsuits could result in a technical battle as to the testing methods used and their ability to distinguish between legal and illegal substances. Given the lack of federal or state regulation of hemp-based products, determining the actual THC levels present at the time of testing would be difficult.

Overall, claims of violation of lawful products laws associated with CBD use remain speculative. However, employers may want to ask their drug testing vendors about these issues, and how their tests are calibrated to avoid false positives for CBD use. In the end, employees use CBD products largely at their own risk, but a determined plaintiff could raise legal claims that survive beyond an initial motion to dismiss the lawsuit.

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