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Don’t get lost in the weeds. Using legal CBD products in Texas could cost you a job

A truck driver who says he took CBD oil for injuries to his hip and back that he suffered in a vehicle accident is suing the company that produced the product, alleging mislabeling.

The lawsuit says that the label stated the product contained no THC, or tetrahydrocannabinol, the compound in marijuana that produces a high. But following a random drug screening, Douglas Horn, of New York, was told by his employer that he tested positive for THC, his lawsuit states.

Horn was later fired from a job that he had held for 10 years, according to his lawsuit. Attorney Jeffrey Benjamin, who is representing Horn, said a trial date is pending.

The company that made the product, Dixie Elixirs, has not returned calls seeking comment.

People familiar with CBD oils and other products made from hemp say the same thing could happen to anyone if they are not careful.

In certain situations, using hemp-derived products may lead to positive THC drug test results and companies can use those results to fire you.

Even though hemp products at THC concentrations below 0.3 percent are now legal under Texas law and federal law, in some cases, a positive THC result on a drug test may derail an employment opportunity and has resulted in some employees losing their jobs.

A small number of CBD (cannabidiol) manufacturers are parties to lawsuits alleging that their products have caused people to lose their jobs, according to reporting from Consumer Reports.

Experts in the field are describing the situation as complex and say things are likely to get more complex before any governmental guidance is available.

According to Gallup News research, one in seven Americans surveyed say they use CBD based products. CBD, unlike THC, is not supposed to produce a high. There is evidence that CBD may be helpful in treating ailments such as epilepsy, anxiety and insomnia.

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Chart that tells how long THC (tetrahydrocannabinol) stays in the body. Courtesy Any Lab Test Now

Most CBD users can avoid problems with workplace drug tests with a little research, according to Rich Barfield, Any Lab Test Now owner. Any Lab Test Now makes health testing services available to consumers and businesses, according to its website.

“If they are taking a product, they really need to be careful about who is producing it,” Barfield said. “If you know you may be subjected to random testing, don’t just go into a store and grab any random product.”

Concerned consumers can pay for their own drug test to check the results prior to taking an employer-mandated drug test, Barfield said.

Typically, the consumer can find CBD or hemp products that say on the label that the product contains no detectable THC. But consumers should remain cautious because some product labels are misleading, Barfield said. And there is no indication that Texas employers are changing their testing protocols, he said.

Don’t trust the product

Employees subject to random drug tests need to be especially careful, said Barry Sample, director of science and technology solutions for Quest Diagnostics, a global diagnostic test and information network.

“The products that are being sold today, these are very much in a ‘buyer beware’ situation,” Sample said. “Those products should not contain any THC. Unfortunately, I don’t think they should trust the products they are buying. This is an area I think clearly needs some regulatory oversight.”

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The type of job that you do or the type of employment that you are seeking will also play a factor. Transportation jobs, safety related jobs, and jobs or companies dependent on federal funding may be more restrictive regarding a positive THC test result.

Sample also advised employees using CBD products to exercise caution about whether they should discuss their use of the product with a potential employer prior to submitting to a drug test.

Even though the new law legalizes the use of small amounts of THC, it is not clear that the law prohibits employers from taking adverse actions against applicants or employees who test positive if they ingested the THC without a prescription, said Michael Green, Texas A&M University employment law professor.

If the reason for ingesting is due to a medical prescription, then that is more complicated, Green said.

“The American With Disabilities Act (ADA) provides that employers have to provide a reasonable accommodation to allow an employee with a disability to perform the essential functions of the job,” Green said. “But the ADA specifically excludes use of illegal drugs from its coverage. Federal law still lists marijuana as an illegal drug. So there is no duty to accommodate under the ADA.”

Employers facing liability issues

If the landscape is complicated for employees and job seekers regarding THC drug testing, it may be even more complex for those who are hiring, particularly for companies who are hiring for multi-state or multinational corporations and who have to deal with different laws in several different jurisdictions.

Employers need to be aware of the legal impacts from state laws that authorize marijuana use, Green said. As more individuals use marijuana and more states make it legal, employers need to assess whether they want to screen for it in applications and determine their expectations on the use of test results as an ongoing condition of employment.

Employers also should focus on having clear policies in place.

“You may have an obligation to have a policy if you are a federal contractor and subject to the drug-free workplace act,” Green said. “If it is prescribed, that has different concerns than just taking it for recreational use. If you choose to test or continue to test, make sure procedures are fair and have mechanisms in place to deal with false positives and legitimate workplace performance connections based upon any substances you decide to test.”

In addition to legitimate concerns about public safety in sensitive industries, some that must comply with existing federal law regarding THC, hemp and marijuana products, there are liability and workers compensation concerns companies must consider, said Mike Muskat, a Houston-based employer-side attorney for the firm Muskat, Mahony & Devine, LLP.

Some companies cannot afford even the appearance of a safety incident that might hurt their reputation with federal or state government officials, Muskat said.

“Employers are caught in a tough spot,” Muskat said. “There is no consensus on how companies are dealing with these issues. Companies need to understand that this is a trend that will not end anytime soon. And in the near future there is unlikely to be any help at the federal level to standardize laws.”

According to Muskat’s co-worker Daniel Lenhoff, some insurance carriers will not want to see any positive drug tests and may even offer lower premiums to workplaces with drug-free employees.

Employers will have to balance all those competing concerns and keep track of changing state and federal laws because none will necessarily have a shelf life of more than a few years, Lenhoff said.

Litigation around these issues is increasing as opportunities to use these products are increasing.

“There is this patchwork of laws that employers need to think through and think about why are we doing these drug tests in the first place,” Lenhoff said. “Because this is an issue that changes as laws change, and as people use THC and hemp products and other substances in new ways, in the end this is always going to be a complicated issue.”

Stressing that both employers and employees are in a tough spot when it comes to the new federal and state laws, the Texas Association of School Boards advises staff and administrators to remain calm and if possible, wait for guidance.

Even experts are having a hard time explaining what is and is not legal, a TASB white paper says.

“When the law is changing quickly, the best advice may be to slow down,” the advisory said. “Don’t rush to adopt a policy that may be impacted or even negated by pending issues on the state or federal levels. Don’t rush to discipline; remember your policies and the legally required mitigating factors. Finally, don’t rush to judgment. Approach employees, students and parents without bias as to their choice of treatment.”

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Mitch Mitchell is an award-winning reporter covering courts and crime for the Star-Telegram. Additionally, Mitch’s past coverage on municipal government, healthcare and social services beats allow him to bring experience and context to the stories he writes.
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