Warning to Federal Employees and Those With Security Clearance: CBD Use Puts Jobs in Jeopardy
CBD has exploded on the market, with people using it for relaxation, pain relief — even better sleep. But though it is legal to use, the News4 I-Team found it could still cost you your job.
“I didn’t worry about it a bit — never gave it a second thought,” said one former federal law enforcement officer who purchased CBD oil over the counter to treat severe back pain.
He said the store clerk told him the product contained no THC and was perfectly safe. He placed the liquid CBD under his tongue as instructed. Three days later, he was randomly selected for a drug test at work.
“And then boom, I was told that I had tested positive for THC,” he said. “It’s horrible. It’s a horrible feeling.”
THC is the psychoactive compound in marijuana, which is prohibited for use by all federal employees. CBD also comes from the cannabis plant but is a different cannabinoid that does not make users high. Federal law allows hemp-derived CBD to contain trace amounts of THC.
“I’m like, ‘It wasn’t marijuana, guys.’ But I’m caught between a rock and hard place,” he said. “They can’t prove that I smoked marijuana, and I can’t prove that I didn’t.”
He asked the I-Team to conceal his identity, fearing that speaking publicly could jeopardize his retirement benefits. He chose to retire earlier this year after his boss revoked his security clearance and suspended him indefinitely.
“It just makes you feel like you’re a bad person, you wasted your career,” said the agent, who had worked in law enforcement for nearly three decades.
“It is an eye opener for a lot of people,” said Don Mihalek, executive director of the Federal Law Enforcement Officers Association.
Dozens of his members around the country have found themselves in similar situations, Mihalek said.
“It’s a new thing that’s out there, and I don’t think a lot of agencies have really gotten to the point of addressing how they’re going to handle that,” Mihalek said.
Neither has the drug testing industry, said Dr. Michael Kosnett, a medical toxicologist at the University of Colorado.
“The issue right now is the panel of testing,” he said. “Even with the sophisticated confirmatory testing, it doesn’t look for the metabolite of CBD. It only looks for the metabolite of THC.”
The testing industry likely will evolve over time to better deal with the rise in use of CBD, Kosnett said. Employers have no way to tell whether the THC in someone’s body originated from CBD or marijuana.
“It may not at all be enough to cause the person to feel high or intoxicated but it’s enough to have the metabolite of THC appear in their urine,” Kosnett said.
Plus, the CBD industry is largely unregulated, so users have no way to know what’s really in the products they’re buying. One study found nearly 70 percent were inconsistent with their labeling, including some with hidden THC, which can accumulate in your body over time.
“Unless a person really knows and has confidence in the purity of that particular brand they have, they could have an unfortunate surprise on a urine drug test,” Kosnett said.
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This summer, the federal division that oversees drug testing for federal employees sent a memo directing agencies “to inform applicants and employees of the risk that using such products may result in a positive marijuana test.” The memo reminded employers “there is no legitimate medical explanation for a marijuana-positive test result other than a verified prescription” for a few FDA-approved drugs.
The Department of Defense has specifically prohibited CBD use — even though Congress passed a law approving it for everyone else.
“It’s not fair. It’s completely unfair,” said Nina French, managing partner of Current Consulting Group, a firm that specializes in all areas of substance abuse testing.
Public and private employers are frustrated and unsure of how to adapt, French said.
“The problem is the times have changed before the tests have. And so now everybody’s going to be caught in the middle until technology and law catches up,” French said.
Employers use drug tests to limit liability and lower insurance costs for workplace accidents, French said. There are roughly 40 million lab-based drug tests in the U.S. each year.
“I can honestly not think of anything in our history that we have managed to botch to this degree,” French said.
The federal agent said he has never used illegal drugs but has no way to prove that. He could have spent years and drained his savings fighting to save his job but decided to retire instead.
“If it were me and this was a person who came into my office, I would look into challenging it,” said Suzanne Summerlin, general counsel for the National Federation of Federal Employees.
Summerlin thinks CBD users could argue there was no intent to break the rules. She worries the federal policy could keep agencies from hiring good candidates or cause them to lose good employees who were just misinformed.
“Certainly, moving forward, we are going to be letting folks know that these situations are happening,” Summerlin told the I-Team.
Both unions say if your job is one that drug tests randomly — after an accident, for security clearance or any other reason — it’s best to avoid CBD products all together.
“Our advice is if you’re going to do anything medicinal, make sure you get a doctor’s prescription,” Mihalek said.
The federal law enforcement officer told the I-Team he contacted his agency’s director in Washington but was told there was nothing he could do.
“If I had known I was going to test positive for this stuff, I would’ve never taken it,” he said. “I mean, look what I’ve had to go through.”
Reported by Jodie Fleischer, produced by Katie Leslie, and shot and edited by Steve Jones.
Can you take cbd oil whilr working for government
Governor Gavin Newsom signed Assembly Bill 45 (“AB 45”) into law on October 6, 2021. AB 45 is landmark legislation for the Cannabidiol (“CBD”) and hemp infused product industry in California. CBD and hemp infused products became widely available across the country following the federal government’s adoption of the Agriculture Improvement Act of 2018. Recreational marijuana use has also been legal in California since 2016 after the Control, Regulate and Tax Adult Use of Marijuana Act became law. AB 45 extends these recent advances of the cannabis industry by formally authorizing the inclusion of CBD and hemp extracts or derivatives in dietary supplements, food, beverages, cosmetics, and other products sold in California.
What Does AB 45 Do?
AB 45 specifically allows the inclusion of CBD and hemp in a variety of products in California so long as their tetrahydrocannabinol (“THC”) concentration levels remain below 0.3%. This requirement aims to bring manufacturers and distributors of such products into compliance with existing California law under the Sherman Food, Drug, and Cosmetic Law, and federal statutory law, which is discussed in more detail below. AB 45 requires that any product sold or distributed in the state have documentation certifying that an independent laboratory confirmed the final form of the product does not exceed a THC concentration of 0.3%. (Health & Saf. Code, § 111925.2.) The bill also establishes a state regulatory scheme over such products and prohibits untrue health statements on product labels, among other things less relevant to the employment context.
Are All CBD Products Now “Legal” in California?
We have previously provided guidance, in a February 2020 Blog Post, on whether CBD products are legal. As was the case then, the short answer to this question is “strictly speaking, no; but it is complicated.”
Uncertainty under Federal Regulators
The legal landscape at the federal level remains largely unchanged since our prior blog post. Federal law draws a sharp distinction between cannabis products based upon their THC concentration level. The federal government and executive agencies, such as the Drug Enforcement Agency (“DEA”), consider any cannabis product at or above 0.3% THC concentration to be marijuana. Marijuana is considered a Schedule 1 drug under the Controlled Substances Act. (21 U.S.C. § 812, subd. (c)(10).) Any product below the 0.3% THC concentration threshold is considered “industrial hemp,” which is legal to produce.
Despite that distinction, the Food and Drug Administration (“FDA”) has signaled in non-binding guidance, “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” As a result, the FDA does not regulate currently regulate such products. In May of 2021, United States Senators Ron Wyden, Rand Paul, and Jeff Merkley introduced proposed legislation on this issue. The stated goal of the “Hemp Access and Consumer Safety Act” is to “ensure hemp-derived CBD products are regulated by the U.S. Food and Drug Administration (“FDA”) like other legal products used in dietary supplements, foods and beverages” and to resolve the current “regulatory gray zone” that exists for these products. Until this or similar legislation is acted upon by Congress or until the FDA changes its course, the regulatory gray zone remains at the federal level.
AB 45 only complicates matters further. Due to the FDA’s position on CBD products, the published THC concentrations of CBD and hemp infused products have widely been considered unreliable in the past. AB 45’s requirement that all CBD or hemp infused products contain less than 0.3% THC concentration—and that an independent laboratory verify that concentration level—aims to bring all such products into compliance with federal statutory law and existing state laws (such as the Sherman Food, Drug, and Cosmetic Law). California’s requirements, however, now lie in tension with federal regulators like the FDA.
AB 45 passed as urgency legislation, meaning that it went into effect immediately upon signature by the Governor on October 6, 2021. As a result—in theory—all CBD and hemp infused products sold and distributed in California must comply with AB 45’s requirements at this time and therefore comply with other relevant state laws. Nonetheless, a risk remains that such products currently sold in California do not yet comply with state law given the short time span since AB 45 went into effect.
Should Employees Avoid CBD Products if They Must Submit to Employer-Mandated Drug Testing?
The short answer to this question is, “it depends upon the type of test and who is administering it.” For example, employees subject to Department of Transportation (“DOT”) drug testing should carefully weigh whether to use CBD or hemp infused products. DOT does not specifically test for CBD, but it issued a “CBD Notice” on February 18, 2020. The CBD Notice warns, “Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.” The Notice continues, “CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.”
Employers may receive inquiries from employees about whether using CBD or hemp infused products will generate a positive drug test. Employers are generally not obligated to advise their employees on whether a certain substance will register on an employer-required drug test. Employees bear the responsibility of passing employer-required drug tests as a condition of employment. If employers are inclined to provide any advice to their employees in this scenario, they should advise them to evaluate the reliability of the product’s reported THC concentration, and, in certain situations, consult with their health care provider(s) prior to consumption. Employers should also advise employees if use of CBD or hemp infused products will violate employer policies irrespective of whether employees are drug tested.
What Other Issues Should Employers Consider Related to Employee CBD Product Use?
First and foremost, employers should examine their current drug use policies to determine whether CBD and hemp infused products are covered by that policy’s provisions. If they are, supervisors should be aware of what the policy states about CBD and hemp infused products. If they are not, employers should consider defining CBD and hemp infused product use and consider establishing rules relating to such use. We recommend that any employer consult with legal counsel should they wish to revise their current drug use policy to address these products.
The Disability Interactive Process
The second major area where the use of CBD and hemp infused products is likely to arise is processing disability accommodation requests. It is clear under California law that employers are not obligated to accommodate marijuana use and can take adverse employment actions against employees for such use, and for possession or consumption of marijuana at the workplace. (See, e.g., Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920; Health & Saf. Code, § 11362.45 (f).) The central holding of the Ross decision was that, despite the existence of the Compassionate Use Act, “[t]he FEHA does not require employers to accommodate the use of illegal drugs.” (Id. at 926 [emphasis added].) The law is far hazier on whether an employer is obligated to accommodate an employee’s off-duty use of CBD or hemp infused products as treatment for an underlying health condition. This is especially true considering the fact that AB 45 was drafted to ensure that all CBD and hemp infused products sold in California comply with other state laws and federal statutory law.
Under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”), employers are generally obligated to consider modifying employment policies as a potential reasonable accommodation for a disability. (See 42 U.S.C. §§ 12111, subd. (9)(b); 29 C.F.R. § 1630.2, subd. (o)(2)(ii).) However, one federal district court recently cast doubt on whether an employee’s request to revise her employer’s drug use policy to allow for CBD as treatment for a medical condition could support a failure to accommodate claim under the ADA. (See Hamric v. City of Murfreesboro (M.D. Tenn., Sept. 10, 2020, No. 3:18-CV-01239) 2020 WL 5424104, at *5.) Some states, such as Virginia, have passed legislation that expressly forbids employers from disciplining employees for lawful CBD use if the employee possesses documentation from a health care provider that states such use is part of the employee’s treatment plan. However, even Virginia’s law allows employers to take adverse action against employees that are impaired on the job from such use. Given the wide array of situations an accommodation request can arise in, employers should consult with legal counsel and tread thoughtfully when responding to an employee accommodation request involving CBD or hemp infused products as a potential treatment for a disability.
There are a number of unresolved legal issues surrounding the use of CBD and hemp infused products in California. Employers should continue to monitor this fast-moving legal space for further guidance.