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Can You Be Fired for Using CBD?

Topics: Career Advice

Products infused with cannabidiol, or CBD, are everywhere these days, particularly in health and wellness products. But just because you can pick up a CBD-laced sparkling water from the corner gas station and you won’t get high, doesn’t mean it’s risk-free when it comes to your job.

Can you be fired for using CBD? The short answer is: maybe. USA Today reports that while it’s not clear how many Americans workers have been disciplined or fired because they failed drug tests after using CBD products, there are some instances and it’s a problem that could grow.

Understanding CBD

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CBD is a naturally occurring chemical compound in the cannabis sativa plant, which has two primary species: marijuana and hemp. CBD can be extracted from hemp or marijuana.

Sales of hemp-derived CBD products have soared since the 2018 Farm Bill legalized hemp cultivation and allowed the transfer of hemp-derived products across state lines for commercial or other purposes. For years, federal law did not differentiate hemp from other cannabis plants, which were made illegal in 1937. But the 2018 legislation defined hemp as those plants containing less than 0.3% of tetrahydrocannabinol, or THC, the main psychoactive compound that causes marijuana users to get high. Plants with more than that amount of THC are considered marijuana, still an illegal controlled substance.

Both THC and CBD interact with your body’s endocannabinoid system but have very different effects — CBD does not produce the “high” associated with THC. According to WebMD, CBD “is most commonly used for seizure disorder (epilepsy). It is also used for anxiety, pain, a muscle disorder called dystonia, Parkinson disease, Crohn disease, and many other conditions, but there is no good scientific evidence to support these uses.” After the 2018 Farm Bill, thousands of products flooded the market in the form of oils, ointments, shampoos and lattes, claiming to help with everything from falling asleep to fighting cancer.

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Not All CBD Products Are Legal

One myth about the Farm Bill, however, is that it legalized CBD. Per The Brookings Institution, the bill states that hemp-derived CBD is legal “if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, association state regulations, and by a licensed grower.” (Phew! Feel like you need some CBD to relax after reading that?)

It is illegal to market CBD by “adding it to a food or labeling it as a dietary supplement,” according to the U.S. Food and Drug Administration (FDA). The FDA website states that “some CBD products are being marketed with unproven medical claims and are of unknown quality. It goes on to state that “the FDA has seen only limited data about CBD safety and these data point to real risks that need to be considered before taking CBD for any reason.”

The FDA has approved only one CBD product, a prescription drug to treat two rare forms of epilepsy. And it makes it clear on its website that the post-Farm Bill landscape is constantly changing, stating “the FDA will continue to update the public as it learns more about CBD.”

Lack of Regulation

Because CBD products are largely unregulated, they could contain more THC than what’s federally allowed, more or less CBD than is stated, or even other harmful ingredients such as pesticides and heavy metals.

In addition to consumer health warnings, the FDA has issued warning letters to companies that market unapproved new drugs that allegedly contain CBD, with some not found to contain the levels of CBD they claimed to contain. But pressure for the FDA to do more is mounting.

“The chronically underresourced and increasingly toothless FDA has few enforcement mechanisms in place to carry out its mandate: ensuring the products we put into our bodies are correctly labeled and safe for consumption,” wrote freelance journalist Zachary Siegel in an opinion piece for NBC News.

The Consumer Healthcare Products Association, which represents the manufacturers and distributors of over-the-counter drugs, dietary supplements and medical devices, submitted a citizen petition in November 2019 asking the FDA to quickly issue regulations to allow a lawful path to market for CBDs – specifically, to create an exception for CBD to be a legal dietary ingredient and to continue to take enforcement actions against marketers of hemp-derived CBD products who are making disease claims.

A Rapidly Evolving Landscape

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A bipartisan group of lawmakers in the House of Representatives on Jan. 15 introduced a bill that would amend the Food, Drug and Cosmetic Act to classify hemp-derived CBD as a dietary supplement. If the bill becomes law, CBD — like vitamins — would be allowed onto store shelves without the testing that’s required of pharmaceutical products.

Speaking at a November 2019 conference, an FDA deputy commissioner heading the agency’s CBD working group acknowledged frustrations about the unclear regulatory path with CBD products and said the agency was going as fast as possible.

Consumers also are voicing frustrations. Class action lawsuits were filed against two prominent CBD companies alleging false advertising with misleading claims about the products’ ingredients and effectiveness.

Confusing matters even more is the increased and rapidly evolving legalization of both medical and recreational marijuana and use of CBD products for medical use on the state level.

Mainstream Doesn’t Mean OK at Work

Most recently among the changes, big food and drink companies reportedly are slowing work on products containing CBD after the FDA announced its safety concerns to the public in November along with its warning letters to some CBD companies. The Wall Street Journal reported in early January that sources say companies including PepsiCo Inc., Starbucks Corp., Monster Beverage Corp. and Red Bull have halted work on drinks with CBD.

Even so, the number of CBD-laced products already on the market and from mainstream brands is remarkable. Josie Maran’s Skin Dope CBD Argan Oil claims to soothe stressed-out skin, for example. And even Martha Stewart is working to develop new CBD products. (OK, maybe not so shocking when you remember she co-hosts a show with Snoop Dogg.)

You can buy CBD-infused products at national retailers such as CVS in some states and at gas stations and supermarkets, as well as CBD specialty stores.

Joining retailers and manufacturers in the CBD craze are consumers of all ages. A Consumer Reports survey found that more than a quarter of people in the United States said they’ve tried CBD and that while it’s most popular among people in their 20s, 15% of people 60 and older have tried it.

But just because there’s greater mainstream acceptance or openness to CBD doesn’t mean your employer will allow it.

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Were These Employees Fired for Using CBD?

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A school bus driver in Utah who used CBD oil as an alternative medicine with her blood cancer and to manage stress was fired after a drug screen came back positive for THC. While she insists she did not use marijuana, which is illegal in her state, it’s possible her CBD product contained enough THC to trigger the positive drug test result.

In North Carolina, where CBD oil is legal, a 54-year-old woman who used CBD oil to treat a medical condition was fired when she tested positive for THC.

Whether a positive THC test result will matter to your employment may largely depend on the type of job you do or the type of employment you’re seeking. Jobs in transportation and those dependent on federal funding may be more restrictive. NASA sent a memo to employees in August warning its employees that using CBD could endanger their jobs. And the Defense Department prohibits service members from using CBD products.

Your employer may be able to make similar rules, depending on where you work. According to The National Law Review:

  • “Employers are generally permitted to adopt drug-free workplace policies and make employment decisions relating to recreational marijuana use by an employee.”
  • “Employers are allowed to refuse to hire prospective employees for failed drug tests stemming from the purely recreational use of marijuana.”
  • “Whether an employer must accommodate the use of CBD oil for medicinal purposes will vary by jurisdiction and will depend greatly on whether the CBD oil is derived from hemp or marijuana.”

The law publication concludes its article with a key takeaway for employers: with so many layers of complexity and the ever-evolving landscape, employers may want to review their area’s medical marijuana laws before taking action candidates or employees who use CBD.

For job seekers and employees considering using CBD, the same takeaway may be applied: know your state law before you buy or use CBD.

Buyer Beware

The main takeaway, however, is that taking CBD or using CBD-infused products could result in positive THC test results — in which case, it would be possible to get fired for using CBD.

While most employers aren’t screening for CBD, they are screening for THC or the byproducts of metabolizing THC to determine if employees have used marijuana. (The drug testing industry currently does not have panels that look for the metabolite of CBD — they only look for the metabolite of THC — although that will likely change as the industry matures.)

Remember that CBD products could contain more THC than listed on the label and that the small amounts of THC allowed in CBD products could build up in the body to detectable levels.

Because each state can determine how it samples and tests hemp plants for THC content, there is no uniformity in measurement and reporting.

Read the Labels

Consumer Reports says that to increase the likelihood that a product doesn’t have more THC than claimed, look for a manufacturer that can provide a Certificate of Analysis, or COA, for its CBD product. If you’re concerned about small amounts of THC building up in your system, consider products that claim to be “CBD only” and have COAs showing they contain zero THC, Consumer Reports says.

You also should pay attention to whether the CBD comes from the marijuana plant or the hemp plant, which has higher levels of CBD and lower levels of THC than a marijuana plant. Marijuana is highly regulated and can only be purchased through dispensaries where legal. CBD derived from THC-containing marijuana — more than 0.3% — is still unlawful.

But without regulation, there’s no way for you to really know for sure what you’re buying, even if you’re reading the label. According to WebMD, a 2017 study found that about seven out 10 CBD products had different concentrations of CBD than advertised. And about one in five contained THC.

Tell Us What You Think

Have you been fired for using CBD? We want to hear your from you. Share your story in the comments or join the conversation on Twitter.

Legal Disclaimer: The information provided is for general informational purposes only and must not be regarded as legal advice. Although every reasonable effort is made to present current and accurate information, PayScale makes no guarantees of any kind and cannot be held liable for any outdated or incorrect information. If you have any concerns, consult an employment lawyer.

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