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Friday, December 14, 2018

CBD Oil Creating Employer Dilemma

Earlier this year the FDA approved the drug Epidiolex Cannabidiol (CBD) to treat seizures in people with Lennox-Gastaut syndrome and Dravet syndrome. The Drug Enforcement Administration (DEA) has subsequently rescheduled Epidiolex as a Schedule V chemical on the Federal Controlled Substances Act. Keep in mind that CBD oil (which appears to be broadly used) is still a Schedule I illegal drug. The only FDA approved use of Epidiolex is in children with serious seizures. However, like all other drugs it can be prescribed and used off-label. 

While CBD remains on the Schedule I list, it has been decriminalized in 47 states and approved in others for treatment of a spectrum of medical disorders. A number of lawsuits have been filed against manufactures of CBD oil from customers who relied on the labeling that the product contained only trace amounts of THC or none at all, but they still tested positive for THC.

With regards to Federally Mandated Drug Testing, MROs must follow the current DOT rules and HHS Mandatory guidelines which mandates that medical marijuana and CBD products which cause a donor to testing above DOT urine cut-off for THC must be reported as a positive drug test.

In respect to non-regulated workplace drug testing and CBD oil, most employers do not address the issue in their drug testing policy. Over a dozen states have authorized a variety of formulas of CBD for a variety of medical conditions. The latest guidance on this issue came from the American Association of Medical Review Officers (AAMRO), a medical review officer training and certification organization. Their November 26, 2018 guidance to MROs nationwide on CBD was as follows: “In a private employer drug-testing environment, an MRO with a positive THC and a donor's claim of using CBD oil, the MRO should consult with the employer. CBD oil is still a Schedule I compound, but state law and the employer should be considered. In the absence of any employer policy or guidance, the "AS IS" approach outlined above is recommended.” The “AS IS” approach mentioned is for the MRO to forward the positive laboratory report for THC and let the employer figure it out.

Common Sense Counsel: So how does an employer form its compliant legal strategy to effectively stand firm when dealing with medical marijuana anti-discrimination claims, CBD oil, prescription opiates and impairing substances in the workplace? Following these six tips will help reduce your legal risks:

  1. Update Job Descriptions to include “safety sensitive position” and the ability to work in a constant state of alertness and safe manner as an essential job function;
  2. Update drug free workplace policies to bring them into compliance with state laws and to include a pre-duty impairing effects disclose safety policy for safety sensitive employees and notice of how medical marijuana cardholders may make a reasonable accommodation request;
  3. Treat all impairing effect prescription medications and substance equally as a safety risk to reduce the risk of medical marijuana anti-discrimination claims;
  4. Notify employees in your policy that the claimed use of CBD oil shall not be considered a medical excuse for a positive marijuana test;
  5. Train hiring personnel, and supervisors, to engage in the interactive process when dealing with cardholders in the 15 medical marijuana anti-discrimination states;
  6. Obtain a written fitness for duty opinion from an Occupational/MRO Physician before you take adverse employment action against a medical marijuana cardholder in one of the 15 medical marijuana anti-discrimination states.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and West Point, GA can be contacted at or 334-246-2901.