By: Abby S. Busler
Cannabidiol (CBD) is the newest buzzword flying around the workplace. Employees are discussing CBD products and are potentially already using these products at home and in the workplace. The topic of CBD often becomes confused with marijuana. This article defines CBD, outlines the current regulation of CBD, and provides employers with practical advice in considering CBD product requests in Wisconsin workplaces.
On November 26, 2019, Governor Evers signed 2019 Wisconsin Act 68 into law. This law revised many state statutes relating to CBD and hemp. As a result, CBD continues to be legal in Wisconsin and individuals seeking to use CBD no longer require a physician’s certificate. Individuals may possess CBD in a form that contains no more than 0.3% of tetrahydrocannabinol (THC).
“Hemp” is the broad term to describe a strain of the cannabis sativa plant that is used when companies manufacture CBD products, including CBD oil. The recent Wisconsin legislation removed hemp-derived products from the United States Drug Enforcement Agency’s Schedule I Substance List, tracking the federal law as well. The term hemp is used to describe the type of cannabis plant that contains up to 0.3% of THC. ‘Hemp’ does not include a prescription drug product that has been approved by the U.S. Food and Drug Administration.
“Marijuana,” is used to classify another strain of the cannabis sativa plant that contains more than 0.3% THC and can induce psychotropic or euphoric effects on the individual. The marijuana strains are illegal in the state of Wisconsin and federally. While states surrounding Wisconsin, such as Illinois and Michigan, legalized recreational marijuana use, Wisconsin law has not changed and marijuana continues to be illegal here.
Ultimately, it is the type of plant that determines whether a substance is legal. If CBD products are derived from the hemp plant, then the products have no more than 0.3% of THC, meeting state and federal standards. However, if CBD products are made from the marijuana plant, then those products would exceed the THC level and be classified as illegal.
It is likely that employers are fielding employee requests to use CBD related products in the workplace. It is also possible that employers are seeing CBD related products pop up on random drug tests. CBD related products containing less than 0.3% THC are legal and employees may use the lawful product, but, as with other products, the employer can regulate its possession and use at work. Producers of CBD products are required by law to sell products with no more than 0.3% of THC, it is important to note each person tolerates the products differently, and may take a risk of metabolizing the CBD and having more than 0.3% of THC in their body. However, even if the product is used off-site and off-duty, it is the employee’s responsibility to ensure he/she is purchasing a product that is within the legal levels and will not result in a positive drug test.
Depending on the profession and job responsibilities certain employees are subject to routine drug tests. For example, Commercial Driver License (CDL) truck drivers are subject to drug tests and could lose their license if they test positive for drugs, including THC. The federal government is extremely strict in its application of drug tests and will not consider any exigent circumstances or explanations if an individual tests positive for THC from CBD based products. If a drug test identifies THC in an employee’s system, the employee cannot appeal the results of the drug test or explain he/she purchased a CBD related product. The result of a positive drug test, regardless of the reason may lead to discipline and potential termination of employment. Certain manufacturers produce CBD products without any THC in the product. Employees that are subject to random drug testing may want to consider using products without any trace of THC to avoid the possibility of a positive drug test.
In light of this, employers may want to consider updating their policies to account for CBD products. For example, an employer may prohibit CBD products in the workplace altogether or consider adding language that specifically addresses THC. Employers that conduct random drug tests could modify their policy to include CBD products containing 0.3% or more THC, or could consider adding a provision to address a positive drug test as a result of the CBD products. However, the responsibility still falls on the employee to ensure compliance with an employer policy. Employees should consider the quality of any CBD product and ensure it is under 0.3% THC. Last, employers should be aware that it is possible they will see requests for CBD products at work as an accommodation in the workplace. Employers are reminded to review any accommodation requests on a case-by-case basis.
Abby S. Busler serves as member of the firm’s Labor & Employment team and the School and Higher Education practice group in Green Bay. Her practice primarily focuses on counseling education clients in school law and labor and employment issues. Ms. Busler can be reached at abusler@dkattorneys.com or 920.431.2230.
This article will appear in the March edition of The Business News.