Hospital to Employees: CBD Products Containing THC Could Get You Fired
WILMINGTON, NC (WECT) – A healthcare system in southeastern North Carolina is warning its employees that using cannabidiol (CBD) products could cause their drug tests to come back positive for compounds from marijuana, resulting in disciplinary action up to getting fired from their job.
In an internal note sent in late February, New Hanover Regional Medical Center advised its roughly 7,000 employees that some CBD products could contain enough tetrahydrocannabinol (THC) — the chemical in marijuana that makes users feel high — to trigger a positive result in the required drug testing.
“NHRMC considers THC found on a drug test as a positive result for an illegal substance. A positive urine drug test will subject you to Progressive Discipline Process, up to and including, termination of employment,” the note reads.
CBD products are in legal limbo in North Carolina. CBD oil is legal but is not regulated by the U.S. Food and Drug Administration. That means there is no official regulatory agency that tests CBD oil to make sure what’s inside matches the label.
While CBD hype has exploded recently, scientific research is still relatively limited but studies show promising results for a variety of conditions, including anxiety, PTSD, insomnia, and chronic pain.
Researchers in 2017 tested 84 CBD products purchased online, including oils, tinctures and vaporization liquid. They found about one in five CBD products also contained THC even though they were not labeled as containing the compound.
“Promoters often claim that the product is THC-free and its use will not show up on a drug test,” the NHRMC message reads. “Because CBD products are not FDA regulated, there is no guarantee what you are buying is THC-free. It may have various levels of THC depending on how it is produced, where it is manufactured and the potency/formulation of the product.”
Hemp, which is made into CBD oil, is only allowed to contain up to 0.3 percent THC under North Carolina law. If it contains more, the cannabis is considered to be illegal.
NHRMC employees are tested before they are hired, and also randomly screened, according to NHRMC Media Relations Coordinator Julian March.
“THC can be present in products advertised as CBD products, which are not regulated by the FDA. The presence of THC in urine would trigger a positive result on a drug test. Testing will not determine if THC is from CBD or marijuana use,” March wrote to WECT about the NHRMC note. “We have advised employees that using CBD products could put them at risk for a positive drug test result.”
The hospital system uses an “outside, federally-approved drug testing lab for all urine drug tests. Lab testing methods specifically target THC metabolites,” according to the internal note. “If an initial screening is positive for THC metabolites, secondary testing will be performed to confirm that result.”
THC metabolites are chemicals created in the body when THC is broken down.
Novant Medical Director Dr. Charles Bregier told WBTV using CBD products will not likely cause a user to fail a drug test.
Colorado Drug Testing Laws – What Workers Need to Know
Colorado law allows employers to test employees for drugs – whether by random drug screening tests or a scheduled testing program. Employers may also test prospective workers as part of the screening process.
Furthermore, Colorado employers can fire employees and disqualify job applicants who return positive test results, even for the use of marijuana (THC) – despite the legalization of recreational marijuana and medical marijuana in Colorado.
Here are three things to know about Colorado drug testing laws:
1. Federal marijuana law preempts state law
Marijuana – which is a schedule I controlled substance – is illegal under the federal government. Therefore, Colorado employees may rely on federal law rather than state law for prohibiting weed in the workplace and for terminating employees who test positive for marijuana.
It makes no difference that the recreational use of pot is legal in Colorado. It does not matter if the employee has a medical marijuana card and consumes weed only for medical use. Nor does it matter if the employee never comes to work high and only uses marijuana during off-hours. A positive drug test is all Colorado employers need to pass over a prospective employee or terminate a current employee. And fired workers have no claim for wrongful termination for being fired or disqualified for failing a drug test, or refusing to take one.
The Colorado Supreme Court in the 2015 case Coats v. Dish Network confirmed employers’ right to fire people for using marijuana. In this case, the plaintiff used medical marijuana during non-working hours. But even though Colorado has legalized medical marijuana, Dish Network could fire him for it because he was violating federal law.
In sum, an employee’s state right to consume marijuana is trumped by a business owner’s right to keep a drug-free workplace.
2. Employees who test positive can lose workers’ comp benefits
Employers may require that workers get drug-tested following a workplace accident. And if the test comes back positive for cannabis use in the employee’s system, Colorado law presumes that he/she injured him/herself from intoxication. Unless the worker overcomes this presumption by clear and convincing evidence, the worker’s wage replacement benefits will be halved.
However, THC can remain in a person’s system for several weeks following consumption. This means employees can lose out on half their wage replacement benefits for a workplace accident they did not cause if their post-accident drug tests show the presence of a perfectly legal drug in Colorado that may have been ingested weeks earlier.
3. Employees may have grounds for discrimination
Even though Colorado employers may fire workers for failing a drug test, workers may still have other grounds to sue depending on the circumstances:
- Invasion of privacy, if for example a worker is required to urinate in front of others during the drug test.
- Disability discrimination, if the worker is taking a prescribed medication – other than medical marijuana – for a legally recognized disability under the Americans with Disabilities Act (ADA).
- Discrimination based on being part of a protected class, if the worker was being singled out for drug testing due to his/her gender, race, age, sexual expression, sexual orientation, etc.
Note that private employers tend to have less stringent workplace policies about zero-tolerance drug use – particularly marijuana use – during tight labor markets.
Call our law firm for legal advice. We offer free consultations.
- CRS 8-42-112.5
- Joe Rubino, Testing positive for marijuana won’t get you fired at more than half of Colorado companies, survey says , Denver Post (March 12, 2019)
- Mark Berman, Colorado Supreme Court says companies can fire workers for using medical marijuana in their off-hours, Washington Post (June 15, 2015). for alcohol testing and drug-testing policies of employees in safety-sensitive positions.
About the Author
Michael Becker has over a quarter-century’s worth of experience as an attorney and more than 100 trials under his belt. He is a sought-after legal commentator and is licensed to practice law in Colorado, Nevada, California, and Florida.
California bill would ban most pre-employment drug tests for marijuana
A new bill introduced in the state legislature seeks to prohibit California workplaces from using evidence of past marijuana use — such as that gathered during a urine or hair test — as a reason to deny someone a job.
The effort comes five years after Californians voted to legalize recreational weed.
But for many seeking jobs in state government, cannabis use can be an obstacle to getting hired. Job applicants in the private sector who use marijuana on their personal time can also be disqualified.
Legalization advocates, including a legislator, are calling on the state to change employment laws. Critics say that the urine or hair tests can be used to show that a person has consumed marijuana in the past, but not whether they are actively intoxicated with THC, the drug’s chief psychoactive ingredient.
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“Urine tests are like going through employees’ trash every week and looking around for empty beer cans or liquor bottles. And if you find some, the person must’ve been drunk on the job,” said Dale Gieringer, director of California NORML, a sponsor of the bill.
According to the California Chamber of Commerce, current state law allows employers to require “suspicionless” drug tests as a condition of employment.
Gieringer is backing AB 1256, introduced by Assemblyman Bill Quirk, D-Hayward, which would essentially ban such pre-employment tests for marijuana use in most situations.
While the bill does have some exceptions, in most cases — if passed — an employer could no longer deny a person employment because a urine test had showed they had tested positive for signs of recent marijuana use.
“You’re allowed to do anything else legal off the job. You can drink, smoke and fire guns, and stuff like that, as long as it’s off the job,” Gieringer said. “So we thought that cannabis should be treated the same way; and of course, drug testing detects use off the job.”
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