As the popularity of CBD (Cannabidoil) grows, so does the question of whether companies will allow their employees to use it or not. In this article we are going to look at some facts and ideas related to how companies can go about not only protecting themselves, but employees from potential pitfalls of not having policies in place pertaining to CBD use in the workplace.
One of the first questions employers ask about CBD, Is it legal? In 2018, the Agriculture Improvement Act of 2018 (aka the Farm Bill) legalized CBD that is derived from hemp and contains no more than 0.3% THC (by dry weight). Notice the key word is CBD derived from “HEMP”, not marijuana. As far as state laws, hemp derived CBD with .3% THC or less is legal in all states with the exception of South Dakota per HB 1191, and with certain exceptions for Idaho Code§ 37-2701(t), and Nebraska LB657. As always, do your due diligence and double check your state laws. But overall, as long as it meets the federal regulations you are good to go in most states.
The next question that revolves around federal guidelines is how does one know if a certain brand of CBD is in compliant with federal and state laws? Well, this is where taking the time to check out manufacturers, labels, and product websites will pay dividends in preventing headaches down the road. There are four main things to look for and should be easily found with a specific product or manufacturer that ensures the product being made is legal and of high quality. Those four benchmarks are:
- Where is the hemp grown? Look for hemp that is grown in the United States. U.S. grown hemp has strict guidelines set fourth by the USDA pertaining to growing and the cultivation of hemp. If it is grown in the United States by a licensed farmer, then odds are the hemp meets federal guidelines. Whereas hemp grown in another country… well, who knows what you are getting.
- Look for a Certificate of Analysis. A COA shows the results of independent lab testing that checks for things like potency and contaminants. The batch number on the COA should match the number on the product’s label or packaging. A key component to look for on a product label is a QR code. This allows the buyer to download lab results for the product being purchased.
- Who and how is the testing done? When it comes to testing, it is always good to have a 3rd party independent testing facility that is doing the COA versus in house. A legitimate third party lab will not have any skin in the game and will give true unbiased results. Labs should meet ISO 17205 standards and have been validated by one of three national regulatory organizations such as the Association of Official Agricultural Chemists, the American Herbal Pharmacopoeia, or the U.S. Pharmacopeia.
- Look for comprehensive labels and potency. The label should match the COA results pertaining to the amount of CBD and THC described on the product in total and by dose. One should be leery of any label that is vague in ingredients, dosage, or COA information as many CBD products are found to be mislabeled or completely false. The more information provided on the label backed by a third party COA demonstrates a manufacturer/seller is open and honest with the CBD product they are producing.
Now that we have the Federal and State laws out of the way, what does it mean for a company? As an employer, can you demand or bar your employees from taking CBD? Technically, a business can write just about any policy they want for their business if it doesn’t violate fair standards and hiring. But let me ask you this, how can one with integrity prevent someone from taking an over the counter supplement in their off time that is legal if it meets federal and state guidelines? As of today, there is no test currently on the market to test just CBD. So, you can’t test to see if anyone is on CBD. Since there is no “psycho-active” effect with CBD products no one would ever be “under the influence” of said product. Now what can happen, is someone deciding to take a CBD product that contains the legal amount of THC (which is up to .3%) and potentially test positive for THC on a drug test. Again, this puts everyone in a sticky situation as they did not break any law other than failing a drug test simply because their CBD contained the legal amounts of THC. That is why it is important for people who are prone to drug testing to ensure that their CBD is THC FREE. On a side note, as the employer, you want to ensure that any drug test is THC specific. One of the most accurate tests currently on the market is a saliva swab test rather than some urine tests. (My next article will discuss issues and solutions pertaining to drug/THC tests.)
Here is my thing on that and this is just my opinion as a safety professional for nearly three decades. Since CBD does not negatively affect ones cognitive or physical performance when it comes to doing a task or job, one cannot use the argument of being “under the influence”. I discussed in my last article the positive benefits of CBD and employee performance when CBD is allowed to be used. Can an employer with sincerity and integrity be able to give a compelling argument to not allow employees to use CBD? I can not think of any other than that one nasty word that companies fear the most… liability. Let’s brainstorm on some commonsense options that can be written into policy that could reduce liability to a minimum, yet support the workforce to show a genuine interest in their health and overall wellbeing.
First, whether you are for or against CBD use, an employer needs to have at a minimum a clear and concise policy stating such. Not having one, opens the door to all kinds of issues and confusion when an employee is considering the use of CBD. What if an employer does want to allow CBD use? Depending on the size of the company and number of employees, a policy could be put in place that addresses the issue on a case by case basis. There are several situations health wise where CBD use makes sense and could benefit both parties. Again, there is no “one size fits all” solution and simply consider doing what makes the most sense for the company at that point and time.
If a company is large and wants to put a general policy in place to allow use and dependent on the state, an employer could possibly include a “prescription” or doctor letter clause that would allow CBD use while under the supervision/direction of a doctor or medical professional. That way if one tests positive for something, then all parties are covered. Noticed I said test positive and not under the influence. This clause is common for people that must take certain medications that are classified as narcotics or other drugs that are not normally allowed when drug testing is done within a company. It essentially allows an employee to take such medications when off duty/work or in some cases while at work if needed such as Adderall or Zoloft.
What if a company is in support of CBD use, but is adamant that their employees not test positive for THC? Creating a list of approved CBD retailers and manufacturers could be a viable solution. Yes, it does require a little work and research, but if a company is willing to invest a little time into vetting legitimate and reputable CBD manufacturers, then it benefits their employees with valid and reputable CBD products which would eliminate any potential of said employee testing positive for THC. If an employer was to use the four benchmarks to find reputable CBD vendors as discussed earlier, then a company can create a list of options for their employees that are 100% THC free for them to choose from, so they do NOT test positive for THC.
These are just a couple of ideas that are currently being used now with success. With the rise and legalization of CBD we are experiencing a revolution of sorts that requires educating and adapting to new trends. Over the next few years there will even more potential issues for states depending on if marijuana is decriminalized or legalized at the federal level. We are already seeing states where marijuana is legal having to make important changes to hiring and drug testing practices due to the laws. Since CBD is now legal, you might as well address the issue sooner rather than later and having sound policies in place will save a lot of potential grief not only to the employer, but the employees as well. Whether you are against or for CBD, it is here to stay.
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