Over the past year, we have had a number of clients report that applicants or employees who have tested positive for marijuana on company drug tests have blamed the results on their use of legal CBD products. This begs the question: Are employers legally prohibited from considering such tests to be positive under their substance abuse policies?

The general answer is no. Drug testing labs have reported that full spectrum CBD products can contain enough THC to trigger positive test results. Although CBD products remain legal in most states, this does not shield employees from the consequences of positive tests absent state laws protecting marijuana use in general. In one of the few case decisions so far involving this issue, a federal district court found that an employer did not regard an employee as disabled under the ADA when it terminated him based on a positive THC test, even though the employee claimed he only used hemp oil.

As a result of these test results, some employers have amended their drug use and testing policies to explicitly warn employees over the use of legal CBD products. Of course, other employers are considering whether to drop marijuana from their drug screens for applicants or employees, which would also address the CBD issue. As more states legalize THC and related products, employers are likely to face increasing numbers of positive test results.