CBD and Employment Drug Testing

February 20, 2018

About a year ago, the Wisconsin legislature passed, and Governor Walker signed into law, an act that expanded the potential use of CBD oil in Wisconsin to treat various medical conditions.  While this law effectively prohibits criminal prosecution of authorized individuals for acquisition or use of CBD (also called cannabidiol), critics then contended the law left too many unanswered questions. While the practice of providing CBD certification to patients has begun to catch on among physicians, and has provided relief to those patients, this lack of clarity has had a significant detrimental impact on some Wisconsinites.  This is, perhaps, most evident in the workplace.

Many Wisconsin businesses – either because of federal regulation or owner policy – have pre-employment drug screening or random drug testing of existing employees.  Some of these employees have been certified by their physicians to acquire and use CBD as an alternative to other more potent and dangerous drugs.  Faced with the lack of a regulated distribution network in which quality information is available, these employees will buy CBD from sources that have not manufactured a sufficiently purified product.  These products can contain trace amounts of THC, a substance which remains illegal at the federal level.  The amounts may be so small that the user is not even aware that they are ingesting THC until they dutifully submit to a drug screen.  Only then do they find that they have tested positive for the presence of THC. While the levels are usually well below what one would expect to see from regular marijuana users, these individuals may now face adverse employment actions including, loss of job opportunities and, in some cases, suspension, and termination.

To be clear, employers who wish to invoke a “zero tolerance” policy on any amount of THC showing up in a drug screen are within their rights to do so in almost all situations.  A commonly given justification for doing so centers on the fact that, as a cannabis derivative, CBD oil is still illegal under the Federal Controlled Substances Act.  Some employers, such as those subject to the Federal Motor Carrier Safety Act or the Drug-Free Workplace Act have very little discretion in this regard.  Yet those same Acts will allow the use of prescribed pharmaceuticals as long as a physician certifies that, in the physician’s opinion, the prescribed substance will not adversely affect the user’s ability to perform the functions of the job. Because there is no federally recognized therapeutic use for any cannabis derived product, there is no mechanism for physicians to provide such an opinion regarding CBD.

This has created a Catch-22 for physicians, patients and employers alike.  Physicians are under enormous pressure to find alternatives to chronic pain medications.  Similarly, patients want alternatives they view as milder and less disruptive to their lives.  Employers, who have very legitimate reasons to promote a drug-free work environment, are seeing quality employees swept up in drug screening protocols designed to combat a different problem.

At present, there is scant statutory, regulatory or decisional law to guide individuals in addressing this issue. As is often the case, though, common sense is a good place to start.  All stakeholders need to first assess the specific situation in which they find themselves and see what, if any, particular regulations pertain.  Physicians need to be aware of this potential issue in advising their patients just as patients need to communicate their particular situations to their doctors.  If a patient/employee knows they work in an industry or for an employer who drug tests, they need to be proactive and approach their human resource offices for guidance.  Similarly, employers need to be prepared for such questions and make discernable policy determinations on how they will handle their employees rather than doing so on an ad hoc basis. If employers find that they are no longer comfortable with zero-tolerance policies that may have made sense a decade ago, they need to revamp those policies in a manner that continues to protect their interests.