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What to Do If Workers Fail Drug Tests From CBD

Lexington, Kentucky, attorney Matthew Lockaby on how employers can prepare for CBD in the workplace

One of the things we’ve recently seen in Kentucky is how CBD is impacting the workplace. Employers need to be thinking about what their policy is going to be with respect to its use, as you can get CBD at Kroger now—and pretty much any pharmacy around the state. I’m sure there are people who use it because a doctor has said it might be helpful. But you don’t need a prescription, and other people may be using it based on some personal preference.

That presents some complications, because while hemp and marijuana are in the same family, they’re different plants. And CBD is extracted from plants that also have THC, which is the psychoactive ingredient. There are, unfortunately, companies who aren’t taking the time and the care needed to extract appropriately. Even though the regulations say you can only have 0.3 percent THC content in a CBD product, sometimes you just don’t know if there’s more than that. At the end of the day, employees need to be careful and do their research before they buy products. Because if the extraction process isn’t done right—or if the label is inaccurate or wrong—people may, through an unwitting use of CBD products, fail a drug test.

What I’m doing is making sure that employers’ policies, procedures and handbooks are updated on what their position is with respect to CBD products—especially with regards to if an applicant or current employee fails a drug test because they frequently consume CBD products. I haven’t had a client tell me they’re getting a ton of false positives, but we do know that false positives based upon nothing more than the use of CBD products has happened, and likely will continue to happen.

One of my clients is an automotive assembly facility in Louisville. They don’t want [CBD] anywhere. Their liability is just too high: They have large, heavy objects on an assembly line, people are using a lot of hand tools, and there’s a critical threat of injury. So, they’re taking a fairly hard line on this. In an office environment, where everybody is pretty close and there’s a lot of trust, they’re maybe a little more lax and willing to see what happens over the next few years. Based on our clientele, it’s just been a matter of what type of workforce they have, and what the safety concerns are that’s going to dictate how they respond.

Additionally, there’s really not any protections under the ADA, even if they’re taking CBD for some kind of disability. And there’s no protections under Kentucky state law, so employers are free to do what they want. They can fire people, if they’d like to; employee rights are almost nil right now in Kentucky. However, employers may not want to lose good people just because they’re taking a [CBD] hand lotion at night before they go to bed. So I encourage them to … update their policies and make sure employees are receiving those policies, so everybody’s on the same page.

It’s not an easy decision to make, and employers need to take into account the nature of their workforce, what industry they’re in. Right now, in Kentucky, businesses can be on the front end by thinking about how they’re going to address CBD. If the legislature says something later on, that actually makes the job easier. But, for now, you have to decide what’s best for your workforce and your company.

For more information on medical marijuana, legalization, controlled substances and federal law (FDA), workplace policies like drug screenings (marijuana tests, failed drug tests and positive drug tests), CBD use, and hemp plants, see our overview of cannabis law.

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