JOANNA FRIEDMAN, A PARTNER AT THE FEDERAL PRACTICE GROUP, SPEAKS WITH CYBERFEDS ABOUT CBD PRODUCTS LEADING TO POSITIVE MARIJUANA TESTS

Posted By smay || 11-Sep-2019

Scrutinize disciplinary actions involving possible whistleblower

Notify employees that CBD products could cause positive marijuana test

IN FOCUS: With the increasing popularity of CBD, or cannabidiol products, agencies must educate employees that using these products could result in failing random drug tests. CBD products may contain THC (tetrahydrocannabinol), which is found in both marijuana and hemp products, Joanna Friedman, a partner at the Federal Practice Group, told cyberFEDS in an exclusive interview.

Currently, a lot of confusion over CBD products exists. The 2018 Agricultural Improvement Act, or the Farm Bill, legalized hemp-derived products that do not exceed 0.3 percent THC, according to a memorandum released by the Substance Abuse and Mental Health Services Administration’s Federal Drug-Free Workplace Program. The memo was issued in response to questions on how using products containing CBD impacts federal drug testing.

This is a “hot button” issue because more and more physicians are prescribing things such as hemp oil, which employees mistakenly think only contains CBD, Friedman said. But hemp contains CBD and THC, both of which are also found in marijuana, so using hemp-derived products with more than 0.3 percent THC could cause federal employees to fail random drug tests, she explained.

In addition, some agencies may have workplace drug policies that specifically ban CBD products, so employees should check with their HR office as using or bringing to work a product with any THC could be a violation, even if the employee would not necessarily test positive for marijuana.

Notice

The lack of “good guidance on hemp products” has resulted in dire consequences for failing random drug testing, including removal, indefinite suspensions, and security clearance suspensions and denials, Friedman said.

For employees holding security clearances – which may require random drug testing – failing the drug test by exceeding the threshold amount of THC can mean months of adjudicating a suspended security clearance and fighting an indefinite suspension, she said.

So, agencies have “an important obligation to educate employees on CBD products and this threshold so there is no confusion on what is and is not allowed,” she added. “If they don’t, they are potentially providing employees with a defense against a disciplinary action.”

Employees “could argue that they didn’t realize a certain threshold of THC in the hemp-derived products would impact their drug test and they were under the impression that CBD products would be lawful in light of the Farm Bill,” she said.

The SAMHSA memo directs federal agencies to “make every effort to inform applicants and employees of the risk that using such products may result in a positive marijuana test.”

Employees should also be wary of trusting product labels detailing THC content, Friedman said. The memorandum notes that the Food and Drug Administration does not certify THC levels in these products, so CBD products’ labeling may not accurately reflect their content.

In one study, for example, the amount of CBD in 69 percent of the tested CBD products was inconsistent with the label, and “some products contained unlabeled cannabinoids, including THC in amounts up to 6.4 mg/mL.” So, an employee’s drug test may be positive for THC due to THC in the CBD product, the memo explained.

 

Categories: Federal Employment Law, Firm News
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