Help oil cbd legal for government employees

CBD and Security Clearances: What do I need to know?

CBD products are a growing trend in the United States and can be made from either hemp or marijuana. In many states, CBD products are readily available over the counter. Oversight of production, however, has not kept up and product labels are not always accurate. This puts employees at significant risk for an unexpected positive drug test and the loss or denial of a clearance. For federal employees, federal contractors, and military members—especially those holding security clearances—the consequences can be devastating.

Q: What is CBD?

A: CBD, formally known as Cannabidiol, is a natural compound found in cannabis plants. Both hemp and marijuana are classified biologically as cannabis; however, hemp does not produce enough THC (tetrahydrocannabinol – the psychoactive intoxicating compound that results in a “high”) to be intoxicating. In the U.S., industrial hemp is defined as a Cannabis sativa L. plant containing 0.3% or less THC.

Q: Is CBD legal in the United States?

A: CBD products made from hemp are legal under federal law pursuant to the Agricultural Improvement Act of 2018.

CBD products made from marijuana are illegal under federal law because marijuana is a controlled substance under the Controlled Substances Act.

State laws vary for both hemp and marijuana products.

The Department of Defense takes the position that all CBD products are “completely forbidden for use by any service member in any of the services at this point of time.” Various military components have issued separate but consistent policies regarding the use of CBD products. For example, Army Regulation 600-85, The Army Substance Abuse Program, prohibits soldiers from using hemp or products containing hemp oil and are also prohibited from using synthetic cannabis, to include synthetic blends using CBD oil, and other THC substitutes (“spice”), or any other substance similarly designed to mimic the effects of a controlled substance. Likewise, the Navy recently reiterated that “all products derived from hemp or marijuana are still prohibited.”

Q: If I use CBD, will I test positive for marijuana?

A: It is possible. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), one study showed that nearly 70% of the 84 CBD products tested contained unlabeled ingredients, including THC. This should be an alarm bell for any employee subject to drug testing. Because of the lack of regulation, even hemp-based CBD products could result in a positive drug test.

Q: Can using CBD affect my security clearance?

A:Yes. Unfortunately, as far as the federal government is concerned, a positive drug test is a positive drug test and using drugs while holding a clearance will usually result in the clearance being pulled or denied. At least for now. In a June 2019 memorandum addressing some of the confusion regarding CBD and federal employment, SAMHSA makes it clear: “. . . there is no legitimate medical explanation for a marijuana positive test result other than a verified prescription for [specific FDA-approved drugs] or generic equivalent.” The U.S. Food and Drug Administration (FDA) warns that it has approved only one “cannabis-derived” and three “cannabis-related” drug products, all of which require a medical prescription.

To be sure, marijuana is still illegal under federal law and a positive drug test could have serious consequences for federal employees with or without a security clearance— even in states where recreational marijuana is legal under state law.

On December 21, 2021, particularly in response to the changing landscape of marijuana use under state law, Director of National Intelligence Avril Haines issued a memorandum clarifying the guidance provided to adjudicative agencies regarding an individual’s involvement with marijuana. This guidance addresses:

  1. Recency of recreational marijuana use;
  2. Use of cannabidiol (“CBD”) products, such as CBD oils; and
  3. Investment in marijuana-related businesses.

Q: As an employee with security clearance, what should I do if I am considering using an over-the-counter CBD product?

A: Consult with your physician and consider the risk. Losing a security clearance is not just losing one job—it could result in the loss of a career.

KCNF has a team of attorneys with extensive experience handling all aspects of security clearance law. If you have a security clearance or intend to apply for one and have questions, we can help.

Want to know more about security clearances and your rights and obligations? We literally wrote the book on it.

For more information, please check out Security Clearance Law and Procedure by KCNF partners Elaine Fitch & Mary Kuntz.

Help oil cbd legal for government employees

Governor Gavin Newsom signed Assembly Bill 45 (“AB 45”) into law on October 6, 2021. AB 45 is landmark legislation for the Cannabidiol (“CBD”) and hemp infused product industry in California. CBD and hemp infused products became widely available across the country following the federal government’s adoption of the Agriculture Improvement Act of 2018. Recreational marijuana use has also been legal in California since 2016 after the Control, Regulate and Tax Adult Use of Marijuana Act became law. AB 45 extends these recent advances of the cannabis industry by formally authorizing the inclusion of CBD and hemp extracts or derivatives in dietary supplements, food, beverages, cosmetics, and other products sold in California.

What Does AB 45 Do?

AB 45 specifically allows the inclusion of CBD and hemp in a variety of products in California so long as their tetrahydrocannabinol (“THC”) concentration levels remain below 0.3%. This requirement aims to bring manufacturers and distributors of such products into compliance with existing California law under the Sherman Food, Drug, and Cosmetic Law, and federal statutory law, which is discussed in more detail below. AB 45 requires that any product sold or distributed in the state have documentation certifying that an independent laboratory confirmed the final form of the product does not exceed a THC concentration of 0.3%. (Health & Saf. Code, § 111925.2.) The bill also establishes a state regulatory scheme over such products and prohibits untrue health statements on product labels, among other things less relevant to the employment context.

Are All CBD Products Now “Legal” in California?

We have previously provided guidance, in a February 2020 Blog Post, on whether CBD products are legal. As was the case then, the short answer to this question is “strictly speaking, no; but it is complicated.”

Uncertainty under Federal Regulators

The legal landscape at the federal level remains largely unchanged since our prior blog post. Federal law draws a sharp distinction between cannabis products based upon their THC concentration level. The federal government and executive agencies, such as the Drug Enforcement Agency (“DEA”), consider any cannabis product at or above 0.3% THC concentration to be marijuana. Marijuana is considered a Schedule 1 drug under the Controlled Substances Act. (21 U.S.C. § 812, subd. (c)(10).) Any product below the 0.3% THC concentration threshold is considered “industrial hemp,” which is legal to produce.

Despite that distinction, the Food and Drug Administration (“FDA”) has signaled in non-binding guidance, “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” As a result, the FDA does not regulate currently regulate such products. In May of 2021, United States Senators Ron Wyden, Rand Paul, and Jeff Merkley introduced proposed legislation on this issue. The stated goal of the “Hemp Access and Consumer Safety Act” is to “ensure hemp-derived CBD products are regulated by the U.S. Food and Drug Administration (“FDA”) like other legal products used in dietary supplements, foods and beverages” and to resolve the current “regulatory gray zone” that exists for these products. Until this or similar legislation is acted upon by Congress or until the FDA changes its course, the regulatory gray zone remains at the federal level.

AB 45 only complicates matters further. Due to the FDA’s position on CBD products, the published THC concentrations of CBD and hemp infused products have widely been considered unreliable in the past. AB 45’s requirement that all CBD or hemp infused products contain less than 0.3% THC concentration—and that an independent laboratory verify that concentration level—aims to bring all such products into compliance with federal statutory law and existing state laws (such as the Sherman Food, Drug, and Cosmetic Law). California’s requirements, however, now lie in tension with federal regulators like the FDA.

AB 45 passed as urgency legislation, meaning that it went into effect immediately upon signature by the Governor on October 6, 2021. As a result—in theory—all CBD and hemp infused products sold and distributed in California must comply with AB 45’s requirements at this time and therefore comply with other relevant state laws. Nonetheless, a risk remains that such products currently sold in California do not yet comply with state law given the short time span since AB 45 went into effect.

Should Employees Avoid CBD Products if They Must Submit to Employer-Mandated Drug Testing?

The short answer to this question is, “it depends upon the type of test and who is administering it.” For example, employees subject to Department of Transportation (“DOT”) drug testing should carefully weigh whether to use CBD or hemp infused products. DOT does not specifically test for CBD, but it issued a “CBD Notice” on February 18, 2020. The CBD Notice warns, “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.” The Notice continues, “CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.”

Employers may receive inquiries from employees about whether using CBD or hemp infused products will generate a positive drug test. Employers are generally not obligated to advise their employees on whether a certain substance will register on an employer-required drug test. Employees bear the responsibility of passing employer-required drug tests as a condition of employment. If employers are inclined to provide any advice to their employees in this scenario, they should advise them to evaluate the reliability of the product’s reported THC concentration, and, in certain situations, consult with their health care provider(s) prior to consumption. Employers should also advise employees if use of CBD or hemp infused products will violate employer policies irrespective of whether employees are drug tested.

What Other Issues Should Employers Consider Related to Employee CBD Product Use?

Employer Policies

First and foremost, employers should examine their current drug use policies to determine whether CBD and hemp infused products are covered by that policy’s provisions. If they are, supervisors should be aware of what the policy states about CBD and hemp infused products. If they are not, employers should consider defining CBD and hemp infused product use and consider establishing rules relating to such use. We recommend that any employer consult with legal counsel should they wish to revise their current drug use policy to address these products.

The Disability Interactive Process

The second major area where the use of CBD and hemp infused products is likely to arise is processing disability accommodation requests. It is clear under California law that employers are not obligated to accommodate marijuana use and can take adverse employment actions against employees for such use, and for possession or consumption of marijuana at the workplace. (See, e.g., Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920; Health & Saf. Code, § 11362.45 (f).) The central holding of the Ross decision was that, despite the existence of the Compassionate Use Act, “[t]he FEHA does not require employers to accommodate the use of illegal drugs.” (Id. at 926 [emphasis added].) The law is far hazier on whether an employer is obligated to accommodate an employee’s off-duty use of CBD or hemp infused products as treatment for an underlying health condition. This is especially true considering the fact that AB 45 was drafted to ensure that all CBD and hemp infused products sold in California comply with other state laws and federal statutory law.

Under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”), employers are generally obligated to consider modifying employment policies as a potential reasonable accommodation for a disability. (See 42 U.S.C. §§ 12111, subd. (9)(b); 29 C.F.R. § 1630.2, subd. (o)(2)(ii).) However, one federal district court recently cast doubt on whether an employee’s request to revise her employer’s drug use policy to allow for CBD as treatment for a medical condition could support a failure to accommodate claim under the ADA. (See Hamric v. City of Murfreesboro (M.D. Tenn., Sept. 10, 2020, No. 3:18-CV-01239) 2020 WL 5424104, at *5.) Some states, such as Virginia, have passed legislation that expressly forbids employers from disciplining employees for lawful CBD use if the employee possesses documentation from a health care provider that states such use is part of the employee’s treatment plan. However, even Virginia’s law allows employers to take adverse action against employees that are impaired on the job from such use. Given the wide array of situations an accommodation request can arise in, employers should consult with legal counsel and tread thoughtfully when responding to an employee accommodation request involving CBD or hemp infused products as a potential treatment for a disability.

There are a number of unresolved legal issues surrounding the use of CBD and hemp infused products in California. Employers should continue to monitor this fast-moving legal space for further guidance.