The Farm Bill Declares CBD legal- But Can it be Used in the Workplace?

The societal perception of hemp-based products has shifted. Anything related to cannabis was typically associated with drug culture and getting high due to the psychoactive THC compound found in the marijuana plant. However, with recent legislative advancements, the public is becoming more educated on the holistic properties of the cannabis plant such as CBD. Rapidly, the negative stigma of industrial hemp is transforming.

Recently, President Trump signed the 2018 Farm Bill to federally legalize the cultivation and sale of industrial hemp.

Prior to the Farm Bill being signed, CBD, a non-hallucinogenic component of hemp was classified as a Schedule I substance. This is the same classification as heroin and cocaine, meaning that the federal government classified CBD as a highly addictive and dangerous.

When CBD became legal in a few states like Washington and Colorado, there were concerns for employers and employees that operated in federally drug free work zones.

While the 2018 Farm Bill declassifies hemp-derived products from a Schedule I status, industrial hemp still contains cannabis sativa which contains a small amount of THC content. If the hemp includes more than 0.3 percent THC it is classified as marijuana. Marijuana is not yet federally legal.

Employees in federally drug free zones express concern as employers can terminate employees should a positive drug screening show illegal substances like marijuana. With the Farm Bill legalizing industrial hemp that can have up to 0.3 percent THC, many employers are questioning how to determine if the employee is legally using CBD or using federally illegal marijuana. With so much uncertainty, it is advised that employers and employees should still refrain from using CBD as the THC content may still cause a positive drug test.

Going forward, employers are going to have to adjust their drug-testing policies. CBD holds a variety of holistic properties, ranging from headache remedies to epilepsy treatment. Employers will need to be aware that if an employee requests using CBD for medicinal purposes, there could be requirements to involve in the cooperative process of the Americans with Disabilities Act.

Clear standards prior to or during employment need to be set for drug testing policies such as:

  1. Provide reasoning for drug testing
  2. Employers need to set clear expectations before drug testing
  3. Make termination penalties clear should there be a positive test
  4. Address the process of how to respond to false positives because of CBD use
  5. Employers need to prepare a medication policy for those who use CBD

Given the legislative transformations, employers are going to need to prepare to face challenges and potentially make policy adjustments to accommodate employees that are legally using CBD.

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