"Ask DISA" is an all-new monthly column that gives employers an opportunity to ask the employee screening questions they need answered. With a focus on drug testing and background screening, DISA's industry experts will answer each question received and publish the most commonly asked questions. To ask your question, visit www.askdisa.com or email askdisa@disa.com.
In this month's "Ask DISA," we're focusing on drug testing issues and their effects on the workplace.
Is CBD oil considered acceptable, and can it result in a positive drug test?
CBD oil can be made from both marijuana and hemp. Hemp-derived CBD oil (often referred to as low-THC, high-CBD oil) is legal in all 50 states, while marijuana- derived CBD oil is not. The laws for marijuana-derived CBD oil vary by state and often have very strict and specific limitations. Hemp-based CBD oils, when used in low doses, are unlikely to result in a positive test because they often don't contain high enough levels of THC for detection. If employees use hemp-derived CBD oil, they would have to consume above 1,000-2,000 milligrams of the product, considered a relatively large amount, to test non-negative. Note: Taking that much CBD oil could result in the user's impairment.
Doses aren't standardized across brands, and some recommend higher doses than others. In addition, hemp-derived CBD oils aren't FDA regulated, and the advertised THC levels of products can be unreliable. As a result of varying dose recommendations and uncertain THC levels, taking CBD oil comes with a risk of a non-negative test result.
If employees use medical marijuana, can they be terminated if they test positive?
Medical marijuana laws vary by state, and it's important that employers address the specific laws that pertain to their company and employees when creating a drug testing policy. Each state has its own system of medical marijuana laws, which may or may not include bills that provide explicit employment protections. For example, in California, legislation allows employers the right to terminate employees who test positive for marijuana even if they hold a medical marijuana card.
In addition to state laws, employers must also address federal standards pertaining to workers' comp, the Americans with Disabilities Act, the Family and Medical Leave Act, unemployment benefits, drugfree workplace laws and state handicap/ discrimination laws. Even in states where marijuana is legalized, the laws do not protect an employee who is impaired, under the influence or using while on the job, especially when working in a safety-sensitive position. While a workplace drug test will detect THC, in most instances, the same test will not determine "impairment." This is why documenting suspicious behavior and implementing manager training for reasonable suspicion and probable cause will help determine if an employee is impaired while on the job.
Should I test based on state laws where my employee lives or works?
The best method for determining an employer/employee's employment rights is based upon a review of applicable state and federal laws and regulations. In lieu of this method, it is a common industry practice for an employer to comply with the state laws that are more restrictive to the employer and most favorable to the employee as a minimum legal review. For example, imagine you have an employee who lives in Arizona but works in California, and the employee has a medical marijuana card that he or she uses in private. Arizona protects employees from discrimination while holding a medical marijuana card, but in California, an employer may fire employees who test positive for marijuana, even if the use was off-duty and for a medical condition with a valid medical marijuana card. To avoid litigation in this scenario, it would be advisable to treat this employee based on Arizona laws.
It is pertinent for employers to have a policy in place for when this occurs and to follow each state's medical marijuana laws accordingly.
For more information or if you have questions about employee screening, drug testing or background screening, the professionals at DISA can help. Email your questions to askdisa@disa.com or visit www.askdisa.com.
