Since our last update on CBD Oil and its implication in the workplace, there have been a few updates in the cannabis world and what it means for North Carolina.
2022 Legislation Updates
In 2022, North Carolina lawmakers passed legislation permanently authorizing hemp and hemp products in the state. The change in legislation specifically distinguishes hemp and hemp plants from marijuana – which remains illegal on the federal level but legal on varying levels among the states. North Carolina has not yet legalized marijuana on any level.
Another component that the 2022 legislation addressed was the legalization of Delta 8 – another substance that is gaining attention in the cannabis world. Similar to CBD, Delta 8 is a substance derived from the cannabis plant (under which fall marijuana and hemp). Delta 8 is a relative of Delta 9 – which is the concentrate responsible for the “high” found in marijuana. Like CBD, Delta 8 has not been evaluated or studied in depth by the FDA nor is it heavily regulated since it falls under the hemp category that is now legal.
What this means for drug policies in the workplace
While many CBD and Delta 8 products do not contain enough Delta 9 THC to result in a positive drug test, the lack of regulation means there is no way to ensure THC levels remain low enough to pass the legal limit. Another concern is the effect of these products creating an “impairment” in employees who may use the products. This concern can create the need for employers to move away from substance testing and focus on impairment testing – a method of testing that evaluates whether the individual using these products is actually impaired. With the growing amount of cannabis products that are becoming legalized in North Carolina, it is important for employers to ensure their drug policies are up to date. Employers should consult with their employment attorney before revising their drug policy.
The original article below was published on September 30, 2020
Cannabidoil, or CBD, is derived from the hemp plant, a relative of the marijuana plant. CBD oil has seen a surge in popularity in the recent years among customers who use it for treating various conditions such as anxiety, insomnia and chronic pain. However, its growing popularity comes with many questions for employers. At times, CBD oil can contain traces of THC, which is considered a controlled substance, and can result in positive drug tests. However, CBD oil by itself does not usually cause a high. CBD oil is legal in all 50 states with varying degrees of restrictions, but its legality will likely change over the coming years. There is very little guidance from the courts on whether employers should accommodate CBD use when creating their drug policy.
In Pennsylvania, an employer sought judicial review of an unemployment order that held the employee was not ineligible for unemployment compensation after the employee admitted to use of CBD oil, tested positive for marijuana and was terminated. The employer had a policy providing that being under the influence of drugs or having drugs in one’s system while at work was ground for termination. The policy defined “drug” as “any substance producing effects on the central nervous system, or any controlled substance.” The employee disclosed she took CBD oil to manage her cancer-related symptoms before being administered the drug test. The court found the employee did not violate the drug policy because the CBD oil ingested was not a controlled substance, and the employer presented no evidence the oil ingested would affect the employee’s performance in ways prohibited by the policy.
In North Carolina, a woman was fired from her job for using an over-the-counter CBD oil after a drug test revealed THC in her system. The woman used CBD oil to treat chronic pain from fibromyalgia, which had been cleared by her rheumatologist and disclosed to her employer.
In a lawsuit claiming wrongful termination and damages, the woman noted that the low levels of THC did not meet the threshold level of being impaired under federal Department of Transportation regulations. The lawsuit claims that due to the low amounts of THC, the woman tested negative for purposes of driving a commercial vehicle and was not impaired. The court held that CBD oil is a legal product under North Carolina law, even if it contains small amounts of THC that would otherwise be considered a controlled substance.
Court decisions such as these create a great deal of questions for employers and their drug policies. Should employers who have a zero-tolerance drug policy accommodate employees who use CBD products? What should an employer do if an employee tests positive on a drug test and blames the use of CBD products which are legal? Does the level of THC in an employee’s system have any weight on an employer’s decision to terminate? The answer to these questions will continue to evolve as we learn more about CBD products. Like many other states, North Carolina’s laws are likely to evolve as we learn more about CBD.
While many CBD products do not contain enough THC to result in a positive drug test, CBD products are not regulated in the U.S., which means there is no way to ensure THC levels remain low in products. Employers should educate employees on this issue and carefully examine the CBD and controlled substances laws in their jurisdiction. Handling positive drug tests where an employee blames the use of a legal CBD product may need to be evaluated on a case-by-case basis. Employers should consult with their employment attorney before revising their drug policy.
 Peter Grinspoon, Cannabidiol (CBD) – What We Know and What We Don’t, Harvard Health Publishing, https://www.health.harvard.edu/blog/cannabidiol-cbd-what-we-know-and-what-we-dont-2018082414476 (last visited Sep. 30, 2020).
 Washington Health Sys. v. Unemployment Comp. Bd. of Review, 231 A.3d 79 (Pa. Commw. Ct. 2020).
 Joe Marusak, Woman Used Over-the-Counter Oil to Treat Chronic Pain. It got her Fired, Lawsuit says, The Charlotte Observer, https://www.charlotteobserver.com/article232244097.html (last visited Sep. 30, 2020).
 Smith v. Manheim Remarketing, Inc et al, No. 5:19CV00086 (W.D.N.C. Nov. 25, 2019).
Do jobs test for CBD?
Routinely employers will administer drug tests – the most common being a urine test. These tests are generally designed to detect metabolites in the individual’s body that are derived from a drug. For example, most drug tests will pick up the presence of Delta 9 THC, the analyte that detects marijuana use. Clinical Interpretation of Urine Drug Tests – Mayo Clinic Proceedings
Since CBD comes from the hemp plant, which is a relative of the marijuana plant, it is generally not picked up by a drug test because there are no traces of Delta 9 THC. However, there are a variety of CBD products on the market such as edibles, gummies, vape pens, etc that are not regulated and potentially may have trace amounts of THC. If there is enough THC present, a person using CBD might have a positive drug test.
Can employees be fired for having CBD in their system?
We have seen one lawsuit out of the Western District of North Carolina where a woman was fired from her job for using an over-the-counter CBD oil after a drug test revealed THC in her system. The woman used CBD oil to treat chronic pain from fibromyalgia, which had been cleared by her rheumatologist and disclosed to her employer. Smith v. Manheim Remarketing, Inc et al, No. 5:19CV00086 (W.D.N.C. Nov. 25, 2019).
In a lawsuit claiming wrongful termination and damages, the woman noted that the low levels of THC did not meet the threshold level of being impaired under federal Department of Transportation regulations. The lawsuit claims that due to the low amounts of THC, the woman tested negative for the purposes of driving a commercial vehicle and was not impaired. The court held that CBD oil is a legal product under North Carolina law, even if it contains small amounts of THC that would otherwise be considered a controlled substance.
What are my options for an employee who fails a drug test due to CBD use?
The CBD industry is rapidly evolving, with constant changes in the law and the development of new products. Moreover, a drug test will look for certain metabolites – which in CBD use, may be confused for marijuana (which is still illegal in North Carolina). If an employer has a “zero tolerance” drug policy and an employee’s CBD use results in a positive drug test, that may be grounds for termination. If an employee has previously disclosed CBD use which may have impacted the drug test results, the employee’s grounds for termination may need to be evaluated on a case-by-case basis.
What if an employee tells me he/she uses CBD?
Since CBD is legal in North Carolina but unregulated, employers cannot issue a blanket statement prohibiting its use. Since it is legal, there is no duty of the employee to disclose its use to their employer if they use CBD. However, it may be helpful if the employee is a CBD user and it has been recommended by a medical professional for any health conditions (chronic pain, anxiety, sleep problems) to disclose the use to the employer. Any potential positive drug tests may need to be evaluated on a case-by-case basis.