Can An Employer Fire You For Using CBD Oil


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Read our news article "Can I Be Fired for Using CBD?" For a free consultation on your case, call us. While legal in all 50 states since the Farm Bill of 2018 the answer to will CBD get me fired, is yes it could. Here’s how to make an informed decision. Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case — April 28, 2022

Can I Be Fired for Using CBD?

Despite being relatively risk-free, government entities only recently began legalizing CBD. In the last few years, CBD products have increased in popularity and are available in a variety of forms, including oils, gummy candies, tinctures, and lotions.

CBD products are legal in New York. What should you know about how its use affects your job? Can you be terminated for using CBD?

Here’s what you need to know.

New York is a CBD-Friendly State

New York is one of the CBD-friendliest states in the country. Many different CBD products are for sale throughout the state and residents are free to buy products in-store and online. Keep in mind, not all of the products are equally high in quality. This means it’s important to do your research and buy from reputable retailers.

Despite CBD use being legal in New York, employers might still be able to discipline employees for using these products. This is why it’s so important to understand the CBD market and make informed choices about the products you’re using.

Whether or not employers must not discriminate based on the use of medical marijuana varies from location to location. New York State legalized adult marijuana use, both medical and recreational, in March of this year via The Marijuana Regulation & Taxation Act (MRTA). The use of medical marijuana was already legal in the state.

What about Medical Marijuana?

As of 2020, 19 states including New York have enacted laws prohibiting discrimination against patients for using medical marijuana. This means most employees can’t be fired for using or testing positive for marijuana as long as they are using it for medical purposes.

This doesn’t mean you’re protected against discipline in all cases though when it comes to marijuana use. You can be fired if you use marijuana during work hours or you’re otherwise impaired during work hours by marijuana use.

It might help to think of CBD products as you would alcohol when it comes to workplace use. Like CBD, alcohol is perfectly legal for people over the age of 21 to consume, but if you’re drinking on the job or you come to work under the influence of alcohol, your employer could choose to discipline you.

Also, keep in mind, employers are free to adopt a drug-free work environment. They can refuse to hire someone who fails a drug test due to the use of marijuana or terminate someone using marijuana recreationally. There’s a good chance this will change in the coming years as recreational marijuana use becomes more mainstream. Many want the laws protecting employees from discrimination based on their use of “lawful products” while off duty extended to include marijuana uses and that’s likely to happen first in states like New York.

Your Likelihood of Termination for CBD and Marijuana Use is Lower Than Ever

Chances are, using CBD products isn’t going to cost you your job in New York. But that doesn’t mean you shouldn’t research the products you’re using, nor should you assume your job is automatically safe when using THC-containing products.

The use of CBD products could result in a positive drug test. Employers aren’t screening for cannabidiol, but many screen for THC – the psychoactive ingredient in marijuana.

And while many CBD products do not contain any THC, some do. This is why it’s so important to research CBD distributors and use products that you trust. If you are concerned about your CBD use affecting your employment status, you need to be sure you aren’t using a product that could trigger a positive drug test result. If you ingest THC, knowingly or unknowingly, it could show up on a drug test and it could be grounds for termination.

Did your employer discipline you for CBD use? Do you have questions about the medical or recreational use of marijuana and how it affects your job? We can help. Contact Borrelli & Associates, P.L.L.C. to schedule a free consultation.

Will CBD Get Me Fired?

Hemp-derived CBD has been legal in all 50 states since the Farm Bill of 2018, but there is much grey area. The quick answer to “Will CBD get me fired is?”, yes—depending on your industry, company policy, or school’s drug policy. Depending on the policy, you may be fired, suspended, or kicked off of sports teams for using hemp-derived CBD.

What Is CBD?

CBD is short for cannabidiol, an active compound found in all of the 700+ strains of the cannabis Sativa plant. CBD is the compound responsible for the medicinal benefits of marijuana. THC is short for tetrahydrocannabinol which is the intoxicating compound that gets you high. However, there is no need for THC to enjoy the benefits of CBD. This is why industrial hemp plants were approved to farm as a part of the 2014 Farm Bill pilot program, then nationwide as of the Farm bill of 2018.

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From a legal standpoint in the United States, hemp-derived CBD is any product that is farmed and processed to contain .3 percent or less of the intoxicating compound THC. Marijuana also contains CBD, but if a product contains more than .3 percent of THC it is considered marijuana-derived CBD. The legality of marijuana for recreational or medicinal use varies greatly from one state to the next.

Do Employers Care About CBD?

The majority of employers don’t have official CBD policies. If your company, school, or extracurricular activity has a formal drug policy you must confirm whether or not CBD is allowed. Why? Because on the federal level, CBD is not yet differentiated from marijuana—which remains classified as a Schedule I Drug. This means your employer can prohibit the use of CBD. They can also prohibit the use of medicinal and recreational marijuana, even if it’s legal in your state. If you aren’t sure, ask your HR department—or you will not be able to answer the question of “Will CBD get me fired” with accuracy.

Can You Take CBD While Working?

If your employer allows CBD use, they may prohibit taking it at work or bringing it to work. Again, be sure to clarify the exact policies, as you may be able to keep CBD in your vehicle in the parking lot but cannot bring it inside. This can be confusing, as you are likely allowed to bring other prescriptions and supplements with you to work, but CBD and marijuana may not be allowed on site.

Even if legal in your state, because marijuana makes you high, most employers prohibit use at work or arriving to work under the influence.

Can An Employer Fire You For Using CBD Oil?

The short answer is—yes. If your employer prohibits use and you are caught using CBD onsite, you can be fired. You can also be fired if they allow use, but you aren’t allowed to bring it onsite, and are found with CBD products. Or you can be fired if you aren’t allowed to use CBD at all and are caught using it offsite.

Wondering how your employer would know you are using CBD oil offsite? A failed drug test is the most common way an employer would find out. Let’s take a closer look at drug tests and CBD.

Will CBD Show On Drug Test?

Although rare, it’s not unheard of for CBD products to test positive for THC, so if your employer performs drug tests—it may be better to remain safe than sorry. Let’s take a closer look at drug tests.

Drug tests screen for a variety of drugs, including THC. Currently, there is no way to distinguish between CBD and THC. As stated above, CBD products can contain up to .3 percent of THC. However, the industry is highly unregulated, and some brands have been found to contain much higher levels of THC. On the flip side, brands such as Holmes Organics process their CBD to contain 0.0 percent of THC.

Drug test laws vary from one state to the next, but most employers can perform drug tests. This could be part of their company-wide drug test policy, but in many states, employers can require a drug test when an accident or injury occurs or require a drug test at random even without a designated drug policy.

There are a variety of drug tests, either 5-Panel or 10-Panel, and a variety of different testing methods.

5-Panel Rapid Tests screen for the five drug classes tested on most standard panels. These include:

  1. Marijuana (THC)
  2. Cocaine
  3. Amphetamines
  4. Phencyclidine (PCP)
  5. Opiates

10-Panel Rapid Tests are expanded to include up to 10 drug classes. They also come in 6, 7, 8, and 9-panel options. They test for more illicit drug classes, including:

  1. Marijuana (THC)
  2. Cocaine
  3. Amphetamines
  4. Phencyclidine (PCP
  5. Opiates
  6. Barbiturates
  7. Benzodiazepines
  8. Methadone
  9. Oxycodone
  10. Methamphetamine

The different types of samples collected for testing include urine, blood, hair strand, and saliva, with urine samples being the most common for schools and employers. There are also a variety of methods for testing each type of sample.

How Long Does CBD Stay In Your System?

This answer varies depending on a variety of factors. On average, CBD is detectable for 2 to 5 days but the factors below could stretch this to a couple of weeks.

  • How often you take CBD
  • How many milligrams you take
  • Your gender, weight, and metabolism
  • Administration method—oral or topical

How Much THC To Fail A Drug Test?

Most employers follow the guidelines set forth by the Substance Abuse and Mental Health Services (SAMHSA). Their suggested cut-off level to pass a drug test is if THC levels are at 50 nanograms per milliliter (ng/ml) of urine. However, some tests detect 18, 25, or 150 ng/ml.

Wondering how many nanograms per milliliter will be in your urine if you use CBD? Again, everyone processes CBD differently so there is no way to be certain. However, the more CBD you use the higher the concentration is likely to be in your urine.

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Can Truck Drivers Smoke CBD?

Sitting between 10 and 14 hours a day, 7 and 8 days in a row can be taxing on your body. Sure, you can move and stretch a bit when you stop to eat, rest, and weigh in—but these quick breaks aren’t enough to alleviate the pressure of sitting for such long stretches of time. This often leads to physical pain and strain, which may have you considering vaping CBD or taking CBD oil while on the road.

While marijuana is prohibited even if legal in the driver’s state, here’s what the DOT has to say about CBD:

“Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”

Can Healthcare Workers Use CBD?

Both traditional and alternative healthcare workers are prescribing medical marijuana and CBD to their patients at an increased rate. But the question remains, “Will CBD get me fired as a healthcare worker?”

This depends on the individual employer’s drug policies for both marijuana and CBD. Some do not differentiate between the two products, while some do. Even in states where recreational marijuana is legal or a healthcare worker has a medical marijuana card, there may be restrictions.

For example, in California and Colorado, nurses may use marijuana only if:

  • The nurse is not impaired when treating patients
  • They follow their employer drug policies
  • They do not work for the federal government
  • They do not violate DUI or other drug criminal laws

The laws and company policies vary greatly from one state and healthcare employer to the next, so you must ensure what your company’s policy is—which you can verify with your HR department.

Can I Take CBD At School?

Many K thru 12 schools, universities, and dormitories prohibit bringing CBD or marijuana on campus. There may be exceptions for students with epilepsy and a prescription or medical marijuana card from a physician.

While you may not be able to bring CBD on campus, students are typically only drug tested if they have signed a sports or extracurricular contract. However, there are exceptions. Staff may be subject to random drug tests. Again, drug tests screen for THC not CBD, but CBD products can contain up to .3 percent of THC, so it is possible to test positive. It’s unlikely, but it has occurred.

Can Federal Employees Take CBD?

Until removed from the list of Schedule I Drugs, or differentiated from marijuana, the answer remains no. This includes all federal, state, and government employees. Active-duty military members also cannot use CBD. There are no exceptions to this rule, and immediate suspension, termination, or discharge are typically the consequence of a failed drug test or being caught with CBD products. This includes products that are medically prescribed.

For example, if a physician approves medical marijuana to alleviate the side effects of chemotherapy—use is still prohibited.

The only exception to this rule is for employees with rare or severe epilepsy, who have a prescription for Epidiolex, the only FDA-approved drug that contains CBD.

Will Topical CBD Get Me Fired?

Generally speaking, topical products with .3 percent of THC or less, absorb less THC into your urine and bloodstream. However, the general answer remains the same—there is no way to guarantee that the THC in CBD won’t show up on a drug test.

With an increasing amount of skincare and beauty products being formulated with CBD, you must be mindful of whether you have CBD topicals in your purse, backpack, or bag when you head to work or school. It may be an anti-aging face cream, hair product, or lotion but if CBD is prohibited there may be consequences for bringing it with you.

How Do I Find CBD With Zero THC?

While industrial hemp is a low-THC strain of the cannabis Sativa plant, sometimes the crops have a bit more than .3 percent THC. Maybe not enough to get you high, but more than the legally permitted .3 percent. So, the additional THC must be removed during the purification process. Unfortunately, not all brands invest in third-party lab testing to ensure purity and THC levels.

The CBD industry is young and highly unregulated, so reading a product label is not enough to ensure that a product contains zero THC. Instead, you must identify a CBD brand that is fully transparent and provides lab reports that ensure purity and THC content. Holmes Organics is such a brand.

Holmes Organics products are USDA Certified Organic, US-grown, and we invest in third-party lab testing to ensure purity and 0.0 percent THC. Our products are also broad-spectrum so they include the terpenes required to prompt the Entourage Effect. However, we still cannot guarantee that you won’t fail a drug test.

How Much CBD Should I Take?

Please Note—CBD companies cannot provide medical advice and we cannot guarantee that CBD will effectively soothe your mind or body. The data we provide is for informational purposes. Consult with your physician for guidance on all dietary supplements.

If you have answered the question of “Will CBD get me fired?” and have decided that CBD is right for you—you may be wondering how many milligrams to take per serving and how often to take CBD. Consult with your physician, to determine a starting point for your height, weight, and wellness needs. That being said, most people start with between 10 and 30 milligrams per serving at least once per day.

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We Invite You To Browse Holmes Organics CBD

If you are searching for a premium CBD brand that performs third-party lab testing to ensure purity and 0.0 THC—we invite you to browse the products at Holmes Organics. We have a wide range of products including oil tincture, softgels, gummies, and a topical cream. We also have a melatonin and CBD sleep product coming in the First quarter of 2022!

Can an employee legally be fired for using over-the-counter CBD products?

Last night, I read this federal court opinion where a defendant, sued after firing a plaintiff who used CBD for her disability, got the entire case dismissed.

So, let’s talk about how and why.

According to the plaintiff’s complaint, she had a disability for which she used an over-the-counter CBD product. It appears that her doctor suggested that she use the CBD product. (It’s not clear whether the doctor prescribed CBD.)

Problems arose when the defendant randomly selected the plaintiff for a random drug test. The plaintiff took the test, at which time she learned that the over-the-counter CBD would cause a positive result. After taking the test that day, the plaintiff emailed the defendant to determine what “documentation” she needed to provide regarding her CBD use. The defendant did not respond.

Sure enough, the plaintiff’s drug test came back positive for THC the next day, and the defendant fired her immediately for illegal drug use. The plaintiff then sued for disability discrimination under the Americans with Disabilities Act.

Now, here’s the thing with the ADA. It does not protect employees from the illegal use of drugs. (CBD products may contain THC).

The ADA does protect CBD users from discrimination based on any underlying disability. But here’s the rub. Suppose the employer doesn’t know any underlying disability. Then, a firing after a positive drug test can’t result in a viable ADA claim.

In this case, the defendant did not know that the plaintiff had a disability — at least not until after the defendant got the test results. Maybe, it never knew.

Plus, the defendant had a good drug test policy. The policy stated that any employee taking prescription or over-the-counter drugs that could be considered “illegal” must provide advance documentation identifying the medication and dosage. Otherwise, the company would deem the drug “illegal,” and “failure to report the use of such drugs to HR may result in disciplinary action, up to and including termination.”

The plaintiff claimed to have used CBD for a while before her random drug screen. But she did not inform the defendant before her drug test. Instead, she provided a doctor’s note post-test. Had the plaintiff followed the policy, the defendant might have given her a pass on the negative results. Instead, when the plaintiff tested positive for illegal drugs (THC), the defendant had no reason to believe she used legally prescribed drugs.

Of course, your mileage may vary depending on the state/city in which you operate and the unique facts and circumstances surrounding a positive drug test involving CBD. But, in many instances, you can fire someone simply because they test positive for marijuana.

(That said, unless you operate in an industry that requires drug testing, why bother? But that’s a post for another day.)

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