Cannabis and the Workplace: More Clarity, Better Science Needed ASAP

Employees and employers continue to be at odds about what constitutes drug use in the workplace, and what, if any, punishment should be applied based on state laws.

That issue has become even more pressing now that CBD has figured into the mix, where issues about testing CBD for levels of THC have gotten murkier and put medical patients and any other new-to-the-scene CBD consumers on notice about what is in the hemp-derived product they are consuming – with the FDA reminding industry that ingestible CBD is still illegal, since it is still not regulated by the FDA.

With the rapid development of more companies providing CBD that allegedly does not contain more than .3% THC, which is now available for purchase at Bed Bath and Beyond and other mainstream stores, more people who never tried a cannabis product for pain management and other maladies are trying it for the first time. According to BDS Analytics, cannabis- and hemp-derived CBD products are expected to surge from $1.9 billion in 2018 to $20 billion by 2024.

The customer base has evolved over the last three years. Today, CBD consumers are an average age of 40, are of higher education, and are more likely than non-consumers to be employed full time.

These new consumers today generally believe that taking a CBD product does not put them at risk for testing positive at their workplace. But it’s becoming a bigger issue, demanding better science, and encouraging legislative intervention.

That issue made it into Congress with a bipartisan bill (1) introduced by Representative Charlie Crist (D-FL) on July 26, 2018, “Fairness in Federal Drug Testing Under State Law,” co-sponsored by Representative Drew Ferguson (R-GA). It sat in the House Oversight and Government Reform Committee for awhile, and eventually died.

The bill sought to protect any medical cannabis patient working for the federal government in a state where medical cannabis has been legalized from getting fired for testing positive for cannabis.

That bill was then revived and reintroduced by Crist on March 12, 2019, cosponsored by Don Young (R-AK), and essentially unchanged except for a new number (2), where it is expected to gain traction soon.

The federal workplace is still grappling through this issue, citing the confusion of understanding exactly what is in a CBD product.

Take the case of an U.S. Air Force Major Joseph Pugh (U.S. v. Pugh) who was dismissed from the Air Force for using a hemp product, essentially an energy bar, based on the USAF policy regarding consumption of any product containing hemp seed or hemp seed oil (3).

Pugh won his case on appeal, resulting in the creation of an updated USAF policy (4) that included quotes from studies about the inconsistent ingredients of CBD products, and the following warning: “We conclude that with a proper prescription, Airmen are permitted to use the Food and Drug Administration approved drug Epidiolex, which contains CBD. Absent such a prescription, Airmen are advised against using CBD products.”

Employees not working for the feds but employed in states that have legalized cannabis have to rely on the company’s interpretation of the state law. And those laws vary widely.

For example, California, the first state to legalize medical cannabis (1996) with recreational legalization following in 2016, allows employers to fire employees who test positive for cannabis. If the company contracts with or receives grants from the state, they are required to certify that they have a drug-free workplace (5), encouraging more broad-ranging employee testing for cannabis.

New York state is a little more permissive (6). On May 10, the New York city council passed two municipal bills limiting drug-testing for cannabis for anyone seeking a job as a condition of employment, even if they were coming off probation for a cannabis-related offense (7,8).

Studies have verified that consumption of medical cannabis in the workplace does not negatively affect performance. According to a study by the National Institutes of Health (9), legalizing medical marijuana was associated with a 19.5% reduction in the expected number of workplace fatalities among workers aged 25-44.

Lawsuits between employers and employees have generally favored the employers. But industry watchers are beginning to see a shift in favor of the employees. For now, it’s a case by case basis, with legislative developments humming in the background.

Disclosures:

References:

1. https://www.congress.gov/bill/115th-congress/house-bill/6589/text
2. https://www.congress.gov/bill/116th-congress/house-bill/1687/cosponsors
3. https://www.altus.af.mil/Portals/46/documents/Drug%20Demand%20Reduction/AFD-150112-013.pdf?ver=2015-09-17-112657-500
4. https://www.mcmilitarylaw.com/images/OpJAGAF-2019-23-DRUG-ABUSE-30-Apr-19.pdf
5. https://www.calchamber.com/california-labor-law/drug-and-alcohol-testing
6. https://law.justia.com/codes/new-york/2014/pbh/article-33/title-5-a/3369/
7. https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3860341&GUID=A27251B0-9DB5-45F5-A47E-14D9B8AB9FFF&Options=ID%7CText%7C&Search=No.+1427
8. https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3860393&GUID=7040463F-8170-471C-97EC-A61AE7B1AA2F&Options=ID%7CText%7C&Search=1445
9. https://www.ncbi.nlm.nih.gov/pubmed/30092547