Last week’s EmployNews included an article summarizing a federal district court decision in Louisiana that distinguished an employee’s use of CBD oil from the use of marijuana under federal law. This decision raises questions over employers’ regulation of the use of CBD products by employees, including those with trace but detectable amounts of THC, the active ingredient in marijuana.

In May, the Ninth Circuit Court of Appeals held in AK Futures LLC v. Boyd St. Distro, LLC, that Delta-8 CBD is not covered by federal marijuana law. The case involved a trademark dispute between two CBD product sellers. The defendant accused of copyright infringement claimed that the copyright was invalid because Delta-8 was illegal under federal law. The Ninth Circuit affirmed the rejection of this argument, concluding that Delta-8 (and presumably other CBD products) are derived from hemp. Congress explicitly legalized hemp in 2018.

How does this decision affect employers? If followed by other federal appellate courts, it could draw a bright legal line between marijuana and CBD products. If an employee uses CBD under a doctor’s instructions, the Americans with Disabilities Act (ADA) could require accommodation of such use, including excusing a positive test based on trace amounts of THC in the prescribed CBD product. In this scenario, the employer could not contend that the ADA’s exclusion of drugs illegal under federal law applies to CBD. This may trigger ADA accommodation requirements, even in states that have not legalized medical marijuana.

As with the Louisiana decision, employers should keep a close eye on developments in this area. Federal and state courts are likely to face an increasing number of challenges based on CBD use.