Use CBD Products? Florida Drug-Free Workplace Implications

Will the use of CBD oils, lotions and pills cause a positive drug test under a Florida Drug-Free Workplace policy? CBD products are growing in popularity across Florida, and so is the potential risk that the inaccurate labeling of THC content in your CBD product will cause surprise drug test failures for employees and applicants. Here is what you need to know.

What is CBD? Cannabidiol (CBD) products are all the rage.  According to an article on Webmd, cannabidiol is extracted from the flowers and buds of marijuana or hemp plants.  Marijuana’s “high” is caused by the chemical tetrahydrocannabinol (THC).  CBD does not produce intoxication due to low THC content.  CBD is credited with treating a host of medical problems, from epilepsy to anxiety to inflammation.

What are the Florida rules on CBD?  In just the past year or so, CBD infused products have expanded quickly across Florida.  Commercial hemp production was legalized in the 2018 federal Farm Bill, signed by Trump, and Florida created the state’s hemp program in 2019 (Florida Statute 581.217), with regulations for hemp extract products found in Florida Admin Rule 5K-4.034.  The U.S. government and Florida statute defines hemp as any crop of cannabis containing 0.3% THC or less in dry weight.  Retail hemp products, such as oils, lotions, vaping cartridges, pills, etc… can be legally purchased in retail stores, but the accuracy of their labeling and CBD ingredients may vary widely.  In fact, a 2017 study found that about seven out of 10 CBD products did not contain the amount of cannabidiol stated on the label. And about one in five contained higher levels of THC.

CBD and Drug Testing. If an applicant fails a pre-employment drug test and explains that he/she uses CBD oil (and gives you a label for a product), does this mean he/she passes the drug test?  No.  Various medical studies have found that the use of pure CBD should not cause a person to fail a drug test.  However, if the THC concentration exceeds the federal and state regulation by even a small margin, employment and criminal justice drug urine drug testing can be impacted.  People who use legal hemp products repeatedly may accumulate THC and is metabolites. Employees should be aware that the use of CBD, even though legal, may cause an unexpected positive result on a drug test.  Florida’s drug-free workplace statute does not provide any accommodation for THC that may be due to CBD, versus marijuana use.  If the initial immunoassay testing (and later confirmatory testing) show metabolites above the level limit, the result is reported positive for THC.  Florida Medical Review Officers (MROs) will report the drug test result as positive (if it exceeds the applicable Florida nanogram levels for THC – which is 50 ng/mL for initial rapid tests and 15 ng/mL for GC/MC confirmatory testing) and the use of CBD products is not a valid excuse under the Florida statute.

CDL Drivers and CBD. Based on the rise in CBD popularity, in 2019, the Department of Transportation (DOT) issued guidance to regulated employees (CDL drivers, pilots, school bus drivers, train engineers, ship captains etc…) in a Drug and Alcohol Policy and Compliance Notice.  DOT tests for marijuana (not CBD), but the labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states.  CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.  A Medical Review Officer (MRO) will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

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