Cutting Through the Haze: Georgia and CBD Oil
In Georgia, employees risk being penalized by their employers for their legal use of Cannabidiol (CBD) oil while performing their jobs. Employers wishing to maintain a drug-free workplace are concerned about employees performing their duties impaired if they use CBD oil, even when CBD oil contains low levels of Tetrahydrocannabinol (THC) and has proven to be safer and more effective than opioids.
The lack of clear guidelines is frustrating workers. State law allows employees to use CBD oil, while other laws allow employers to fire workers for using it. Georgia lawmakers are looking to move the ball forward on harmonizing the employer’s goal of prohibiting working under the influence on the one hand with the patient’s goal of legally treating health conditions on the other.
Legislators will have to categorize CBD oil.
Did the CBD oil come from marijuana or hemp?
Both marijuana and hemp are plants that come from the “cannabis” family. The primary difference between the two plants is the level of THC present. Marijuana plants can have THC levels of up to 30%, whereas there is usually less than .3% of THC in hemp (you can’t get high from .3%).
After the Agricultural Act and Farm Bill in 2014 drew some attention to hemp, the Industrial Hemp Farming Act of 2015 removed hemp from the controlled substance schedule so long as there was no more than .3% THC. Therefore, hemp derived CBD oil is legal; but under federal law, CBD oil derived from marijuana is illegal. The legality of marijuana derived CBD oil at the state level depends on how individual states treat marijuana.
But what if we remove the THC from marijuana derived CBD oil?
18 states, including Georgia, are in the process of passing legislation to specifically address this issue and resolve the relationship between THC threshold and CBD oil categorization.
Georgia should have clearer answers after the 2019 legislative session.
Currently, Georgia allows for the use of low-THC CBD oil, but the lack of clarity requires forward-thinking legislation to satisfy employers concerned about impaired workers while protecting patients who are following state law while performing their jobs.
Back in March, 2016, House Bill 722 was introduced to allow Georgia manufacturers to grow and cultivate medical marijuana in-state under strict controls. While this early legislation left pro-cannabis legislators wanting more, it allowed for the limited use of CBD oil to treat severe illnesses. By the conclusion of the 2017 legislative session, SB 16 and HB 65 broadened the conditions eligible for treatment from low THC CBD oil (including PTSD, intractable pain, and Alzheimer’s).
Earlier this year, a resolution was passed to study industrial hemp production. This optimistically signals that much needed clarity should result from the upcoming legislative session in 2019.
San Antonio woman’s CBD use leads to firing, lawsuit
Drug counselor Melanie Farr alleges in a lawsuit that she was fired by her employer, Management & Training Corp., for failing a drug test. Farr said she was taking CBD oil to help with symptoms of her multiple sclerosis. She is suing under the American Disabilities Act, saying the company did not accommodate her disability.
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Products containing hemp-derived CBD oil are seen at a store in Willis. A San Antonio woman says in a lawsuit she was fired for failing a drug test for taking CBD oil to treat her multiple sclerosis.
San Antonio drug counselor Melanie Farr early last year started taking CBD oil to help with her multiple sclerosis.
Farr, 48, placed drops of CBD oil under her tongue. It improved her gait, eased her pain and lowered her blood pressure. But it also got her fired after she failed a drug test.
Now, Farr is suing her former employer for refusing to allow her to use CBD oil. She alleges that Utah-based Management & Training Corp. failed to provide her a “reasonable accommodation” in violation of the Americans with Disabilities Act.
Farr said her supervisor knew she was taking the CBD oil for her MS.
“We discussed it many, many times,” she said. “I worked there a long time taking it. I’m a counselor. That’s what I do. So if I was high, somebody would have said something. It was clear I wasn’t high.”
Management & Training spokeswoman Issa Arnita said she could not comment because the matter is in litigation.
Farr’s case may be among the first of its kind in Texas. It highlights the risk workers take when they consume cannabidiol, or CBD — even though it’s perfectly legal. That is, it’s legal as long as the hemp-based products contain no more than 0.3 percent THC, the psychoactive ingredient that gives users the high sensation.
Take too much and it could lead to a failed drug test, experts say.
The Food and Drug Administration found in 2016 that some CBD products contained fairly high amounts of THC, said Grace Kroner, a fellow in the clinical chemistry program at the University of Utah School of Medicine. She has studied whether CBD use can lead to a positive drug test.
Depending on the particular CBD product, Kroner said taking it over time can lead to a build-up of THC in the body. That, in turn, could cause positive results on different types of drug tests, she said.
“I don’t think there is any perfect way to get around this problem if someone is using CBD of some kind,” Kroner added. “I wouldn’t have any good advice for how to approach it. The easiest way would not be to take it. (But) I know there is evidence that it might help, or some people feel it might help” with various ailments.
Brett Ginsburg, associate professor of psychiatry and behavioral health at UT Health San Antonio, called the issue a “conundrum” for CBD users.
“People are consuming products that are effectively legal,” he said. “But once they consume them, they may now test positive for an illicit substance. So it is an issue.”
“It’s caveat emptor,” Ginsburg said. “It’s buyer beware because this is largely an unregulated space.”
Beside oil drops, CBD is marketed in a variety of product types, including capsules, syrups, food products such as chocolate bars and teas, and topical lotions and creams.
Farr was diagnosed with MS in 1997. It “renders her substantially limited in various life activities, including walking, balancing, caring for herself, and working,” her suit says. “Despite these limitations, (she) … was fully capable of performing her job.”
She started working as a licensed chemical dependency counselor for Management & Training in October 2018 at the Dominguez State Jail on Cagnon Road in San Antonio. The company contracts with the Texas Department of Criminal Justice.
Farr counseled about 25 inmates in group and individual counseling sessions.
Farr’s lawsuit alleges that she informed her supervisor upon her hiring that she suffered from MS. He often referred to her as “fluffy” because she reminded him of a fluffy cat that is always in the way, the suit says.
After President Donald Trump signed the 2018 Farm Bill, which essentially legalized the cultivation and sale of hemp, Farr’s primary care doctor suggested she take CBD for her MS. She says she purchased the CBD oil from the doctor.
“It helped her walk significantly better with less pain,” her suit says.
On Feb. 14 of last year, she was instructed to take a random drug test. She notified the lab technician administering the test that she took CBD oil on her doctor’s recommendation knowing that it could “trigger a false positive for THC.”
The following week, the suit says, she was pulled out of a group session and advised by her supervisor that she had tested positive for marijuana. She was placed on administrative leave despite telling her supervisor that her use of CBD oil caused the false positive.
The supervisor said she needed to provide a doctor’s note confirming that she was “prescribed CBD by her doctor.”
Farr forwarded a doctor’s note saying she had been taking CBD oil for chronic pain treatment since January 2019.
“CBD oil does not contain THC,” the doctor wrote in the note. “We will report UDS (urine drug screening) test in office as well. Patient has no current history of current drug use.”
Farr also gave her supervisor a Forbes article that reported on how CBD oil can cause false positives for THC.
They didn’t help. Farr. Management & Training terminated her March 8, 2019, for the failed drug test, the suit says.
“They should have allowed her to continue using what was an appropriate medication for her, for her condition,” said Farr’s San Antonio lawyer, Michael V. Galo Jr. He filed the lawsuit Feb. 20 in San Antonio federal court.
The lawsuit accuses Management & Training of unlawfully discriminating against Farr because of her disability. It acted with “malice, or reckless indifference” towards her federally protected rights under the Americans with Disabilities Act, the suit adds.
Farr seeks unspecified compensatory and punitive damages, as well as reimbursement for lost wages and benefits.
A few months after Farr’s termination, Gov. Greg Abbott signed legislation to establish hemp cultivation and production programs in Texas. The law also clarified that hemp-based products such as CBD oil are legal as long as they contain no more than 0.3 percent THC.
In 2015, Texas passed the Compassionate Use Act, allowing the first legal use of low-THC cannabis products for patients with epilepsy. That law was expanded last year to include other conditions, such as multiple sclerosis, terminal cancer and autism. CBD products under the program can contain no more than 0.5 percent THC.
Neither Disability Rights Texas nor the Coalition of Texans with Disabilities had heard of any case involving a person with a disability being fired for using CBD oil.
“There remain significant gray areas in the way that Texas views CBD and marijuana, in general, especially for medical use,” said Dennis Borel, the Coalition of Texans with Disabilities’ executive director.
Borel, who is not involved in Farr’s case, said it’s important to highlight that her consumption of CBD oil was not for recreational use.
“It seems to me if her doctor, informally or formally, told her, or at least put it in writing, that CBD would be helpful to her in dealing with MS, then there would seem to be a case to be made — if not a legal letter of the law case, a humanitarian case — that this particular drug counselor should be allowed to continue in her work, if everything else is good with her work,” Borel said.
For her part, Farr said she has stopped taking CBD to avoid any problems with her current employer.