Companies continue to struggle with drug-testing policies in the workplace amid the legal grey area that surrounds hemp-derived products that contain legal, trace, amounts of THC.
This legal gray zone was brought into sharp relief this month, when a three-judge panel of the US Court of Appeals for the Fourth Circuit overturned a decision by the US Drug Enforcement Administration (DEA) that cannabinoids derived from legal hemp become illegal after some manufacturing processes.
The majority agreed that the 2018 Farm Act removed ‘hemp’ and its derivatives from the list of controlled substances, covering all derivatives, extracts, and cannabinoids so long the product is not more than 0.3 percent THC by dry weight. Citing a precedent set by the Ninth Circuit, the Fourth Circuit became the second federal appeals court to reject the government’s position.
Congress has never actually addressed THC, leaving the US Food and Drug Administration to regulate it, and states using the non-preemption clause of the Farm Bill to create their own rules.
For an employer with multiple locations in multiple states, it might be especially stressful to navigate all of the regulations. Lawyers say it’s very challenging to handle THC metabolites without risking discrimination lawsuits.
Drug Testing Complications
Attorneys say if someone were to test positive for THC, or even just the minor traces that can be found in CBD, the drug screen won’t account for whether or not those metabolites are from marijuana or hemp. Legal experts note this.
The Fourth Circuit’s decision, for example, stemmed from a case involving a real estate developer called Diamondback Investment Group LLC, which did not violate the Americans with Disabilities Act when it fired an employee who tested positive for THC. It was irrelevant whether or not the worker could have invoked North Carolina’s legal products law, which prohibits firing someone for using a lawful product for medicinal purposes, because she did not show that she had a disability, and could not prove that the hemp-derived products she claimed she used for health reasons were, in fact, legal.
In anticipation of the new trend, Nancy Delogu, co-chair of Littler Mendelson PC’s drugs and alcohol practice group, says employers should allow more workers to account for false-positive drug tests if, as they claim, they’re using a legal product, such as CBD or an edible with a dose of THC.
“This is a complex area, and employees may not understand the court’s point that simply because you can buy something at a convenience store does not mean that it contains only federally approved substances or, even if it does, that the use may not be protected from an employment perspective,” says Delogu.
In addition, Nancy Delogu suggests employers practicing drug compliance at work consider consulting a medical expert on whether employees are using the detected drugs legally before taking adverse action.
The complications with drug testing have also created new challenges for recruiting, especially as marijuana laws change across the country.
Recruiting Challenges
As pot becomes legal across the country and consumption habits shift, and as public attitudes evolve, employers are turning to the courts for guidance on how to reconcile legalized employment protections for users against the liabilities and safety issues associated with THC according to some attorneys.
Meanwhile, at least one multi-state employer has done away with pre-employment testing for marijuana, and others have relaxed their drug policies in order to accommodate an the applicants simply following modern laws, as most people see it. Although marijuana is still federally regulated, it seems like things are loosening up. Workplaces might want to adjust their policies to reflect this.
Chase Stoecker of the law firm “McGlinchey Stafford PLLC” had the following to say: it’s an issue “percolating under the surface” as employers balance recruitment and retention “with their interest in having a drug-free workplace. A lot of people don’t realize what they’re buying at the gas station or corner store may be legal but contain substances that trigger a positive drug test [and cause termination].”
But that does not mean that the worker was impaired at work, said Robert DiPisa, co-chair of the cannabis law group at the law firm Cole Schotz PC in New Jersey. THC can remain in a system for days or weeks following after a drug session, and fat cells can take up THC molecules, which is why a test can come back positive.
The average drug screen does not even tell you how much THC is present meaning it could have been consumed quite some time ago. Due to this and other issues, attorneys abroad are advising employers to move away from pre-employment drug screening for jobs that aren’t safety-sensitive and they rather focus on if an employee is impaired on the job an post-accident drug testing.
Due to this and other issues, lawyers abroad are advising employers to move away from pre-employment drug screening for jobs that aren’t safety-sensitive and rather focus on if an employee is impaired on the job and impose rules against on-the-job impairment, or post-accident testing.
The ADA and THC
The ADA does not protect the use of substances that are federally illegal even if they help otherwise qualified individuals with disabilities perform their jobs.
While CBD is legal if derived from hemp, employees using it legally for medicinal reasons can claim ADA protections, especially if the CBD is prescribed to treat a disability. An employee might also claim disparate treatment, if the use of hemp or CBD products was a pretext for their termination.
According to attorneys, such a claim will be successful only if the product is regarded as closely related to one of the categories of disability, and if the employer failed to provide a reasonable accommodation.
This is in contrast to states that offer employment protections for typical marijuana users, but typically not THC or CBD (with the possible exception of newer protections in states such as California or New York, that might extend to cannabis and hemp products also).
Nancy Delogu observed that the Fourth Circuit move poses few direct legal risks to employers because the court “recognized that a drug-free workplace program is not by its nature discriminatory and that drug tests that seek the presence of illegal drugs are a valid workplace goal,”
According to Robert DiPisa, employers must carefully handle positive drug test results due to the complexities of the current laws.
The ruling invites companies “to dust off their handbooks and take a second look at their approach to hemp-derived products and even cannabis,” says DiPisa. It should help serve as a cautionary tell for employers to establish clear drug compliance policies for both inside and outside of work.
The case: Anderson v. Diamondback Inv. Group LLC