A majority of states now authorize the use of either medical or recreational marijuana, but it seems like CBD or cannabidiol is garnering as much attention as the stuff that actually causes the munchies. What is all the buzz about?
As a primer, CBD is derived from the marijuana plant and is one of hundreds of cannabis compounds. THC (tetrahydrocannabinol) is the more famous probably because it is psychoactive; CBD is not, as long as it contains less than 0.3% THC. CBD products come in many forms, including an oil that can be consumed orally or rubbed on the skin, gum drops and other edibles, capsules, and liquid vaping cartridges. CBD is not yet thoroughly vetted for use by the medical community, but some assert that it is helpful in relieving pain, inflammation, nausea, anxiety, depression, and many other ailments. The FDA recently approved a pharmaceutically manufactured version of CBD called Epidolex, which is for use to treat rare forms of epilepsy.
What is the challenge for schools and other employers when a student or employee requests to use or consume a CBD product and report to work or campus? Because CBD is a cannabis compound (and thus THC-adjacent) and is also not regulated, it is impossible to tell if any given edible or dropper of oil contains more than the permitted trace amount of THC. Thus, though unlikely, consumption of CBD could trigger a positive drug test, putting an employer in the difficult spot of responding to an employee who insists that they are just using CBD oil to aid with sleep. Depending on the employee’s job description and whether the employer is a school, tolerance for a positive test could be quite low, putting continued employment in jeopardy.
For schools, even in states where recreational marijuana is legal or personal use amounts are decriminalized, statutes enabling such use and possession carve out exceptions for school zones, disallowing cannabis products on campus. Thus, even a doctor’s note permitting a student to consume CBD for help with anxiety may not pass the sniff-test, as there is no way—absent an independent lab test—to prove that the CBD product does not contain more THC than advertised or permitted on school grounds. To make matters more complex still, that same doctor’s note may trigger the need to engage in a dialogue with the student about whether use of CBD should be considered a reasonable accommodation under the Americans with Disabilities Act or its state law equivalent.
And let’s not forget that the federal government still considers all cannabis compounds (including CBD) to be Schedule I drugs, and thus illegal to consume, possess, or distribute. With the passage of the 2018 Farm Bill, the production of hemp (another non-psychoactive cannabis product) may be the tightly regulated exception, but implications for the legality of CBD are still hazy. We thus encourage employers to take a fresh look at policies related to drug testing and for schools to be mindful of state laws that may liberalize use of CBD products off campus but not in a school zone. Step lively and stay alert: enforcement and regulation in this budding industry is dynamic.