A Lawsuit Waiting to Happen: Get Cannabis Testing Right or You Will End Up in Court!

Legal cannabis and hemp or CBD has become the latest rave racing rapidly across the U.S.and finding its way into many consumer products. The availability of products containing CBD in varying proportions is increasing exponentially.As CBD products surge in the marketplace they also present employers who conduct drug testing with a new issue, Can Common Drug Test Used by Employers Tell the Difference between CBD or THC?

Background

CBD oil is short for cannabidiol and is a compound found in cannabis. CBD, a non-intoxicating compound that, like Tetrahydrocannabinol, or THC, is found in varying amounts in the plant known as cannabis.

“THC, is the chemical compound responsible for marijuana’s euphoria and is usually screened for in a typical urine drug test. When drug testing is mandated, employers follow guidelines, such as the Substance Abuse and Mental Health Services Administration (SAMHSA), which has a set cutoff level for a positive test at > 50 ng/mL. When a test is positive, it then gets screened again with a confirmatory GC/MS or LC/MS test, which have cutoff levels of 15 ng/mL and is specific only to the THC metabolite.”1

THC is federally illegal, however, in December 2018the U.S. Farm Bill legalized hemp — cannabis that contains less than 0.3 percent THC. With that, CBD became legal. It can now be found at stores across the country, in everything from massage oils, sleep aids, coffee, cookies, gummy bears, make-up, etc.

Although most CBD products claim to have under 0.3% THC, which is classified as hemp, the products remain unregulated making the THC levels unreliable.

Amy Norton of Health Day Reporter wrote in her article. ‘Pure CBD Won’t Make You Fail a Drug Test. But . . .’, “a preliminary studyled by Grace Kroner, lead researcher, of the study conducted by the University of Utah Health Sciences Center in Salt Lake suggests thatCBD won’t make you fail a drug test — at least if the CBD is pure.Researchers found that CBD, or cannabidiol, did not react with either of two commercially available tests used to screen for marijuana use. However, another cannabis compound — cannabinol (CBN) — did.”

While the above study’s information is informative it is important to note that according to a recent article, ‘Will CBD Oil Result in a Positive Drug Test?’ by DISA, a provider of workplace safety and compliance services, the DEA states, “for practical purposes, all extracts that contain CBD will also contain at least small amounts of other cannabinoids. Although it might be theoretically possible to produce a CBD extract that contains absolutely no amounts of other cannabinoids, the DEA is not aware of any industrially-utilized methods that have achieved this result.”

The Problem: Can Common Drug Test Used by Employers Tell the Difference Between CBD and THC?

Drug tests for marijuana detect THC, not CBD, which means even hemp-based CBD products can have low amounts of THC. Drug tests do not determine the type of substance an employee took, only if it contains THC.

A little-known study published in 2012 in the Journal of Analytical Toxicology that showed that a common forensic drug testing method could easily mistake the presence of CBD for THC. According to the 2012 journal article, trifluoroacetic anhydride, or TFAAwhen used by a GC-MS machine was unable to discern between CBD and THC. If a person who used only CBD were given a drug test that employed this device, method and chemical, the results would falsely report the presence of THC.

Bruce Houlihan, director of the Orange County, Calif., crime lab and chair of the emerging drugs and opioids committee for the American Society of Crime Lab Directors, noted that many labs have upgraded from GC-MS analysis to a more precise technique called high-performance liquid chromatography. However, Mr. Houlihan added,” tests using GC-MS are still common and many of those may be using TFAA.”

In addition, two chemists with Cascade Chemistry, a private chemical-research company in Eugene, Oregon, independently reviewed the study for The New York Times and confirmed the validity of the potential drug testing problem.

Frank Conrad, the chief technology officer and lab director at Colorado Green Lab, a scientific consultant to the cannabis industry, said,“I can’t even estimate how many people this is going to screw over.”

Houlihan expressed concern, saying that “If any labs are using this method, they’ll have to be careful.” He added that there was no way to estimate how many drug testing labs might be accidentally mistaking CBD for THC, because forensic labs generally determine their methodology in house.

It is also difficult to estimate how many people in a year have suffered negative consequences, such as the loss of a job or parental rights, after testing positive for THC, because most drug testing data is private.

Nonetheless, a drug test that identifies THC that was acquired through legal CBD products could have serious consequences for the individual because even in states that have legalized marijuana, it remains legal for employers, to test for THC.

For example, a woman who was fired from her job last year following a urine drug test from Quest Diagnostics has claimed that a CBD product caused her to test positive for THC.

The woman had been taking the CBD product for a few weeks when she went in for a scheduled drug test. The company that produced the product is based in Colorado and appeared to be legitimate, she said, so she was shocked when she failed the drug test. “They were reputable,” she said. “They had their lab results on their website.”

Barry Sample, the senior director of science and technology at Quest Diagnostics said that unreliable identification of THC levels in the products used was most likely the problem and likely why her Quest drug test showed that she had used THC. But the woman insisted that the CBD product she purchased did not get her high and did not have any THC.

False positives in drug tests are just one of many issues that have arisen as drug testing firms and law enforcement authorities attempt to catch up with the rapidly shifting laws around the cannabis industry.”2

What Should Employers Do?

Drug Testing Methodologies

The first option employers should consider is to engage with their drug testing firm to ensure they are appropriately addressing this issue by using the most recent testing processes and procedures to minimize false positives.This could include expanded drug panels and multiple testing methodologies to enhance their drug testing program.

This is also an excellent time to take advantage of the expertise of your drug testing firm to help you determine the best approaches you should consider to address this issue.

Employee Education

A recent Gallup Survey reported that an estimated 14% of Americans are using these products which likely includes some of your employees. With this rapid growth in the use of products containing CBDanother avenue for employers to consider isto educatetheir employees about CBD and THC. Employees need to be aware that CBD is not regulated and identified levels of THC in products are not reliable.It benefits employers for their employees to be able to make an informed decision and to fully understand that despite using these products legally they may inadvertently result in a positive drug test. As the saying states, “forewarned is forearmed.”

“Reinforcing this point is a study conducted by Ryan Vandrey, Ph.D., associate professor of psychiatry and behavioral sciences at the Johns Hopkins University School of Medicine. The studyfound that individuals who are subject to urine drug testing should understand that even very small amounts of THC in a CBD/hemp product can trigger a positive result for cannabis. They should know that conventional drug tests cannot distinguish whether THC present in someone’s system came from cannabis, or a federally-legal hemp product.”

The Johns Hopkins study also highlighted the issue of some poorly regulated CBD products being advertised as “THC free,” that actually contain levels of THC similar to (or higher) than the THC levels present in the cannabis used in a study conducted by Ryan Vandrey, Ph.D.

This information is especially important for people who use hemp/CBD products daily for therapeutic reasons, to know that, THC can potentially build up in a person’s system with repeated use, which could further increase the chances of a positive result for cannabis.”3

Vandrey and his collaborators at the University of Pennsylvania published a JAMA study showing that that 21% of CBD/hemp products sold on the Internet contained THC, even though their labels didn’t properly disclose it.

Policy Considerations

This may also be a good time for employers to take a step back and revisit their marijuana related drug testing policies and procedures to see it they are in tune with the times and the rapidly changing legal marijuana use picture across the country.

This could include implementing Medical disclosure policiesso that employees working in a safety-sensitive position disclose their prescription drug use to the employer, helping to cover all bases for legal drug use that ‘zero tolerance’ policies don’t provide.

Additional options includeestablishing a protocol to address THC positive results which could involve

  • re-testing,
  • engaging in an interactive process and accommodation analysis if the employee has a prescription to use medical marijuana to determine if there should be an accommodation (be sure to check your state laws on this.) A critical question to answer here is ‘does the employee’s use of medical marijuana off-duty impair the person or interfere with their ability to perform their job or create an unacceptable safety risk?’
  • implementingenhancedpre-Adverse Action processes which provide the person the opportunity to explain the CBD products they have used and to producedata that supports their legal use and

Conclusion

One of the main issues employers should understand is the fact that many hemp or CBD products, regardless of their legality in a state, are unregulated and can contain THC which might show up on a drug test. CBD products’ identification of THC levels are not reliable, consequently, employees using the suggested serving size might test positive on a drug test even if they are legally using the product and using the recommended doses.

It is important for employers to understand that workforce drug test commonly used are designed to identify the presence of THC, however, they cannot identify whether the source of the THC is marijuana or CBD. Consequently, employers should understand while it’s improbable that an employee using hemp-derived CBD products will test positive since the person would have to consume above 1000-2000mg of the product, considered a relatively large amount.However, it is not impossible and could still happen.For this reason, employers need to anticipate the possibility of situations arising in which employees have legally and appropriately used CBD products receiving a positive test for THC.

A very critical point of this article is to let employers know that its’ important to increase their knowledge about CBD and THC so they do not automatically jump to the conclusion that a positive test by an employee for THC warrants termination. The landscape for drug testing of marijuana is evolving and employers approaches to dealing with this issue needs to evolve as well or they can wait and let the courts decide.

Bibliography

  1. Will CBD Oil Result in Positive Drug Test?, DISA, https://disa.com/blog/will-cbd-oil-result-in-a-positive-drug-test, July 22, 2019.
  2. Lewis, Amanda Chicago, CBD or THC? Common Drug Test Can’t Tell the Difference, 15, 2019.
  3. Hasse, Javier, ‘Legal CBD Products May Make You Positive ForCannibis in Urine Drug Tests, John Hopkins Study Says,’ November 6, 2019.

About the Author

Barry Nixon is the COO, PreemploymentDirectory.com the leading background screening information portal and online worldwide directory of professional background screening firms and Suppliers to the background screening industry. He co-authored the landmark book, Background Screening & Investigations: Managing Hiring Risk from the HR and Security Perspective. He also is the publisher of award winning newsletters, The Background Buzz and The Global Background Screener, and the author of the Backgrounder column in PI Magazine.

In addition, Barry is a past recipient of the elite ‘Top 25 Influential People in Security’ by Security Magazine and past Co-Chair, International Committee for the Professional Background Screening Association (PBSA). He also served as a Global Ambassador for PBSA for many years.

You can contact Barry at 1-949-770-5264 or online at wbnixon@preemploymentdirectory.com

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