The Risks of CBD Use and THC Testing

June 10, 2020

The widespread availability and use of CBD, in combination with imprecise drug tests, presents challenges to employees and employers. If the proper steps are not taken, employees risk losing their jobs, and employers risk losing valuable employees.

CBD, which is derived from hemp, is legal and popular in Wisconsin. Cities and towns in every part of the state host retailers specializing in the sale of CBD products. These products include oils, tinctures, transdermal patches, isolates, tablets, capsules, vape oils, creams, and lozenges. CBD has been advertised as treating a host of conditions, including pain, inflammation, insomnia, and epilepsy. There are even CBD products intended for pets. In short, CBD is everywhere, and the breadth of its applications means it appeals to customers in every demographic.

The widespread use of CBD products is generally not an impediment to job performance. In Wisconsin, the THC content of hemp plants from which CBD products are derived is capped at 0.3 percent. The low THC content means CBD products are not intoxicants comparable to alcohol, opioids, or high-THC cannabis. An employee taking CBD for inflammation, for example, is physically and mentally intact on the job. For this reason, prohibiting CBD use by employees is not strictly necessary to ensure workplace performance and safety.

However, the minimal THC content in CBD products means drug-testing regimes can sweep up CBD users along with users of intoxicating drugs. Some CBD products, such as those advertised as full spectrum, intentionally contain a small percentage of THC. Poor quality control by manufacturers sometimes causes ostensibly THC-free CBD products to contain THC. In fact, a Journal of American Medical Association study of 84 CBD products found 43% had more THC in them than labeled. Accordingly, CBD-users may test positive for THC even though they have never consumed an intoxicating cannabis product.

There is a world of difference between an employee’s evening use of a CBD lozenge for inflammation and an employee getting high in the parking lot before his shift on the forklift. Drug tests do not make this distinction. Accordingly, employers may find that a superb employee tests positive for THC. Some industries, like transportation or those subject to the federal Drug-Free Workplace Act, may have no choice but to suspend or fire employees who test positive. Employees will have their careers derailed over legal behavior that is irrelevant to workplace performance or safety. At a minimum, employers and employees will waste valuable time and resources unraveling the circumstances of the positive test. There are no winners in this situation.

Given the prevalence of CBD, employers need to consider alternatives to drug testing. As part of this process, employers should consider whether testing for THC is necessary or useful given the positions and risk factors. Written policies and employee agreements are a means of accommodating CBD use. Some businesses have removed THC from their drug-testing panel and focus on preventing workplace intoxication. This typically involves training managers to recognize the symptoms of workplace impairment. Ultimately, employers can accommodate CBD use without forfeiting productivity or safety by implementing one of these strategies.

Axley is ready to assist employers and employees as they navigate the collision of widespread CBD use and existing drug testing practices.