DOT Drug Testing Compliance

Author: ptcok

Author: ptcok

Department of Transportation Issues Notice on Use of CBD Products by Safety-Sensitive Employees

Posted on by ptcok

The Department of Transportation’s (DOT) recent notice on the use of cannabidiol (CBD) products serves as a warning to employees in DOT-defined safety-sensitive positions. While the DOT has always had clear regulations strictly prohibiting the use of marijuana for truck drivers, school bus drivers, train engineers, pilots, transit vehicle operators, and the like, the increasingly widespread use of CBD products created a gray area with regard to testing. This notice makes clear that CBD use does not excuse a positive drug screen and therefore safety-sensitive employees may want to be wary of using CBD products.

DOT’s Notice on CBD Products

On February 18, 2020, the DOT issued its “DOT Office of Drug and Alcohol Policy and Compliance Notice,” on the use of CBD products by safety-sensitive employees who are subject to the DOT’s drug-testing regulations. These products include the increasingly popular CBD alternatives available on the market today. In 2018, President Donald Trump signed the Agriculture Improvement Act of 2018 (Farm Bill) (Pub. L. No. 115-334), which legalized industrial hemp at the federal level. The DOT’s notice observes that “hemp” has been removed from the definition of marijuana under the Controlled Substances Act. Therefore, hemp-derived products containing up to 0.3 percent of tetrahydrocannabinol (THC), the psychoactive component of the cannabis plant, are not controlled substances.

With that as background, the DOT notice emphasizes the following three points for both employers and safety-sensitive employees with regard to the use of CBD products:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

Though not law, this notice may give employers needed and appreciated guidance on the use of CBD products and how the DOT will enforce their use by employees in safety-sensitive positions. The DOT will not test for CBD, but the notice warns safety-sensitive employees against the use of highly-unregulated products containing the substance.

Key Takeaways for Employers

The increasing popularity of CBD products has sparked inquiries in almost all industries, but especially by those DOT-regulated employers that employ safety-sensitive employees. This notice may give those employers some clarity on safety-sensitive employee use of CBD products.

Importantly, CBD products are not illegal, and neither is their use. CBD products are those products that contain less than 0.3 percent of THC, and therefore do not fall within the legal definition of marijuana under the Controlled Substances Act. Products with less than 0.3 percent of THC should not trigger a positive drug screen, and the DOT does not test for CBD oil.

However, CBD use is not an excuse for a positive drug screen. As the notice explains, CBD products are highly unregulated and may contain more than 0.3 percent of THC, even if their labels indicate the contrary. This means that the use of CBD products could trigger a positive drug test for THC, and any such test result will be treated as would any other result that is positive for THC. Employers may want to make their employees aware of the notice, as employees may not seek out the notice of their own accord.

The legalization and use of recreational and medical marijuana, and cannabis products, such as CBD, continue to present unique issues for employers. Ogletree Deakins will continue to monitor state legislation and will post updates on the firm’s Drug Testing blog as additional guidance becomes available.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Illinois Governor Signs Employer-Friendly Amendments to Recreational Marijuana Law

Posted on by ptcok

On June 25, 2019, Governor J. B. Pritzker signed legislation making Illinois the eleventh state to approve marijuana for recreational use. Recreational use of marijuana will be permitted by law beginning January 1, 2020. As we noted in our earlier article, “Legalized Cannabis in Illinois: What Employers Need to Know,” the Illinois Cannabis Regulation and Tax Act (the “Act”) explicitly permits employers to adopt “reasonable” zero-tolerance or drug-free workplace policies, so long as such policies are applied in a nondiscriminatory manner.

When the Act was initially passed, employers expressed concern that they might have to prove an employee was under the influence of cannabis when an employee failed a drug test. Employers also expressed concern regarding whether they could conduct random drug tests.

In order to address these issues, the Illinois General Assembly amended the Act via a trailer bill, Senate Bill 1557, during the fall legislative session. On December 4, 2019, Governor Pritzker signed the legislation into law as Public Act 101-0593. The changes took effect with the governor’s signature.

The amendments clarify an employer’s ability to conduct pre-employment and random drug tests (employers may also conduct reasonable-suspicion and post-accident tests), and to take action due to a failure of a drug test. The amendments specifically provide, “Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.” 410 ILCS 705/10-50 (e)(1).

Despite this employer-friendly amendment, workplace drug policies still must be both reasonable and nondiscriminatory. While the amendments clarified several concerns expressed by employers, the amendments did not address what a “reasonable” policy is. As such, employers may want to review their workplace drug policies and give additional thought to standards of reasonableness.

 

 
 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

What Is CBD Oil and Why Should Employers Care to Know?

Posted on by ptcok

Cannabidiol (CBD) is a nonintoxicating compound found in both marijuana and hemp that can be extracted and combined with oil for ingestion or inhalation through the use of a vaporizer. In recent months, retailers in many states have been marketing and selling CBD oil derived from hemp as a natural remedy for pain, anxiety, insomnia, and a multitude of other ailments. And business has been booming—sales of hemp-derived CBD products totaled approximately $600 million in 2018, and that number is expected to grow rapidly over the next several years. Due to the red tape created by the Controlled Substances Act, CBD has not been thoroughly studied, and additional research will be needed to fully understand CBD’s standalone effects and health ramifications. However, the World Health Organization and the U.S. Food and Drug Administration (FDA) have found that CBD is effective in treating certain forms of epileptic seizures.

Recent federal legislation removed hemp and hemp-derived products, including hemp-derived CBD, from Schedule I of the Controlled Substances Act, which drastically increased their marketability. Since the use and production of CBD oil and related products derived from hemp are now lawful under federal law and in most states, employers may want to learn the basics about CBD and what it means for their workforces.

How Is CBD Related to Cannabis, Marijuana, or THC?

“Cannabis” refers to the species of plant from which the drug marijuana is derived. Cannabis contains a psychoactive ingredient called tetrahydrocannabinol (THC), which produces a “high” in marijuana users.

There are multiple strains of cannabis, however, and some contain much lower levels of THC, such that the plant has little to no psychoactive effect. One such variety is hemp, which is defined as a form of the cannabis plant containing a THC concentration of not more than 0.3 percent. Both hemp and marijuana contain the chemical compound CBD.

When CBD oil is derived from hemp, and thus contains less than 0.3 percent THC, it does not have any known impairing effects that employers would need to be concerned about in the workplace. Moreover, CBD oil derived from hemp generally will not cause a positive result in employment-related drug testing, since most drug tests look for evidence that an employee has ingested THC rather than CBD.

Congress Approves Use of Hemp Products and CBD in the 2018 Farm Bill

In December 2018, the U.S. government passed the 2018 Farm Bill, also known as the Agriculture Improvement Act of 2018 (AIA), which legalized industrial hemp at the federal level. The AIA removed hemp from Schedule I of the Controlled Substances Act and reclassified it as an agricultural commodity. Thus, following the AIA’s passage, hemp-derived products, including hemp-derived CBD, are legal at the federal level. Importantly, however, the AIA does not preempt state and tribal laws that regulate hemp in a more restrictive manner.

Did the AIA Decriminalize Marijuana?

Must an Employer Accommodate Recreational Marijuana Use?

The AIA only permits the cultivation and production of the hemp plant, including CBD oil derived from hemp. The Controlled Substances Act continues to classify marijuana and CBD products derived from marijuana as illegal Schedule I substances.

Whether CBD oil derived from marijuana is legal at the state level varies greatly from jurisdiction to jurisdiction. Currently, 33 states, as well as the District of Columbia, have legalized the personal use of marijuana for medicinal purposes, and 10 states plus the District of Columbia allow marijuana to be used for recreational purposes.

Despite the recent proliferation of legislation surrounding marijuana, no jurisdiction to date has required an employer to accommodate recreational marijuana use. Employers are generally permitted to adopt drug-free workplace policies and make employment decisions relating to recreational marijuana use by an employee. Employers are also allowed to refuse to hire prospective employees for failed drug tests stemming from the purely recreational use of marijuana.

Must an Employer Accommodate CBD Products Being Used for Medicinal Purposes?

Whether an employer must accommodate the use of CBD oil for medicinal purposes will vary by jurisdiction and will depend greatly on whether the CBD oil is derived from hemp or marijuana.  Where the CBD oil is derived from hemp and is being used for medicinal purposes, employers will generally accommodate its use, unless they are within a jurisdiction that has taken a more restrictive approach to hemp-derived CBD than the federal government.

With respect to marijuana-derived CBD oil containing more than 0.3 percent THC, employers in states without a medical marijuana statute need not allow its use by employees. Where medical marijuana is legal at the state level, however, a state-specific analysis is required, as some, but not all, of these states provide protections for employees who use medical marijuana. That being said, states generally do not require an employer to allow the use of marijuana on its premises, nor must an employer tolerate an employee being under the influence while performing his or her duties.

The varying nature of CBD products may also present some obstacles for employers. The majority of CBD products are not regulated by the FDA and run the risk of containing more than the federally permissible amount of THC, even if sold in a state that does not permit the sale of marijuana products. Thus, there is a possibility that an employee could use what he or she believes to be a legally permissible, hemp-derived CBD product, but the unregulated product could trigger a positive test result for THC. In those types of situations, an employer may not definitively know whether the positive result was triggered by CBD oil or marijuana use.

Takeaways for Employers

The growing use of medical and recreational marijuana in a number of states has caused some employers that are not required by federal or state laws or regulations to test for drugs to either halt their drug testing programs or, in some instances, remove marijuana from the tests. Not all employers either can or desire to take that approach, particularly if the employees operate large or expensive power equipment in the manufacturing or transportation sectors. Due to the ever-evolving landscape and multiple layers of complexity in this area, employers may want to carefully examine the medical marijuana laws in their jurisdictions before taking action against an applicant or employee who claims to use marijuana or CBD oil for medicinal purposes.


 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Oklahoma’s Unity Bill Allows Employers to Prohibit Medical Marijuana Use by Employees in Safety-Sensitive Positions

Posted on by ptcok

Oklahoma employers received a much-needed boost from the recent passage of the Oklahoma Medical Marijuana and Patient Protection Act, more commonly called the “Unity Bill.” This legislation comes after much upheaval about the Oklahoma electorate’s passage of the Oklahoma Medical Marijuana Act (OMMA)—State Question 788—in the summer of 2018. Many experts have characterized the Oklahoma medical marijuana law as a permissive-use marijuana law due to the fact that the law has very few restrictions compared to other states’ medical marijuana laws. The law has no list of qualifying conditions for getting a medical marijuana license, leaving it up to doctors to determine who needs marijuana. The only other state to fashion a medical marijuana law similar to this is California. The version of the law passed by voters also puts few restrictions on dispensaries (aside from being 1,000 feet from schools). Attempts to add details to the law through regulation were met with strong opposition, and they were later stricken as changing not only the letter of the law but also the spirit.

In creating the Unity Bill, lawmakers obtained input from several interested groups including employers’ groups, chambers of commerce, law enforcement, banks, tax commission leaders, and cannabis advocates. The Unity Bill clarifies the OMMA.

The Unity Bill accomplishes the following:

  • Establishes requirements for testing medical marijuana inventories for contaminants and cannabinoid and terpenoid (THC/CBD) content
  • Implements labeling requirements, including a universal symbol for tetrahydrocannabinol (THC), potency, a statement that the product has been tested for contaminants, and a ban on packaging that is made to appeal to children
  • Bans counties from making laws that restrict access to medical marijuana
  • Affirms the right of medical marijuana patients to own firearms
  • Restricts smokable marijuana in public in a way that mirrors restrictions on public tobacco use
  • Creates caregiver licenses, which would authorize caregivers to buy and deliver products marijuana to a medical marijuana license holder
  • Details rules and regulations for establishing medical marijuana businesses including commercial growers, processors, transporters, laboratories for testing, and dispensaries

The OMMA, and subsequently the Unity Bill, prohibit employers from taking action against applicants or employees solely on the basis of either their status as a medical marijuana license holder or on the basis of a positive test for marijuana. The Unity Bill defines a “positive test for marijuana components or metabolites” as “a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.” Possession and use of medical marijuana while at work or in or on company property can still be prohibited.

Most importantly, the Unity Bill allows employers to lawfully refuse to hire applicants for safety-sensitive jobs or to discipline or discharge employees who work in safety-sensitive jobs if they test positive for marijuana, even if they have a valid license to use medical marijuana. According to the bill, safety-sensitive jobs are those with “tasks or duties the employer reasonably believes could affect the safety and health of the employee . . . or others.” A nonexhaustive list of job examples is included in the law, listing the following:

  1. “the handling, packaging, processing, storage, disposal or transport of hazardous materials,
  2. the operation of a motor vehicle, other vehicle, equipment, machinery or power tools,
  3. repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage,
  4. performing firefighting duties,
  5. the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
  6. the extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component,
  7. dispensing pharmaceuticals,
  8. carrying a firearm, or
  9. direct patient care or direct child care.”

The new law gives employers the discretion to decide what positions include safety-sensitive job duties that are exempt from the anti-discrimination prohibitions of the OMMA. Employers with Oklahoma-based employees may want to identify job positions that fall into this broad, protected category and document the basis for concluding that those job positions require the performance of tasks or duties that could affect the health or safety of the employee or others. The safety-sensitive job classification now provides a valid method for employers to curb the potential use of marijuana (even medical marijuana) by employees and to enhance a drug-free work environment.

The Unity Bill also provides a legal remedy for applicants and employees. It clarifies that any aggrieved applicant or employee has an exclusive remedy for a willful violation of the law under the Oklahoma Standards for Workplace Drug and Alcohol Testing Act.

The Unity Bill will go into effect on August 29, 2019.

 
 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.
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