Workplace Drug Testing

The idea that an employee can be fired for their off the work conduct should not be tolerated. If employees are able to drink in excess every evening following their workday without it interfering with their work, employees should be able to implement CBD into their regular lives to prevent from using harmful prescription drugs.

Comparing other states and countries to Indiana and the United States it is clear from the statistics that CBD should not be the cause of someone losing their position. This in the future would allow for fewer opioid overdoses and more employees in the job market.

Indiana law allows the distribution of low THC hemp extract. Low THC hemp extract is defined as a “substance or compound that is contains not more than three-tenths percent (0.3%) total delta-9-tetrahydrocannabinol (THC), including precursors, by weight; and contains no other controlled substance.” In most instances, this is not enough to test positively on a drug test, yet do employees want to take this risk?

There is also the risk of there being more THC in the product than what you think you are buying. Other than testing each bottle of CBD that is bought, there is not a way to determine whether this is true or not, other than trusting the label you buy.

It is legal for states to fire an employee after a positive drug test. If your employer finds out that you are using this product, can they fire you even if there is no definitive proof? To test positively on a drug screen, a consumer is said to have to consume more than 2,000 mg per day of CBD oil. Unfortunately, there have not been enough tests to prove this one way or another. In the cases of both Krulik and Winicker, neither indicated an obscene amount of CBD oil consumed to equate more than 2,000 mg per day. Both men were using CBD as an alternative to prescription drugs to help wean off and eliminate their health issues.

CBD and THC can stay in a person’s system for up to 30 days after consumption. Because of this, a person can use these products the night, week, or even month before and still test positive for them on a drug screen. If someone is using these products for pain management, even if they are not using them on the job site, why are they being punished for looking for natural alternatives than opioids.

CBD and THC are not addictive in the same respects as opioids. Marijuana is associated with addiction due to “dependence” of the drug. According to the National Institute on Drug Abuse, marijuana addiction is controversial as marijuana is said to possibly cause people to become “dependent” rather than “addicted.”

Can CBD use be protected by the Americans With Disabilities Act ("ADA")? “Betz says some of those employees may be protected under the Americans With Disabilities Act.” The federal law prohibits large employers from discriminating against employees who take legal medications to treat a disability.”

The ADA specifically does not include or accommodate medical marijuana use because it is considered an “illegal drug” and is still unlawful under the Controlled Substance Act. But, there is a provision that allows “illegal drug substances ‘taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law’ to be covered by ADA protections.” That is to say, if a health care provider recommends this use, it should be protected by the ADA. The Courts have stated though, that doctors who recommend marijuana do not do so legally under federal law and “the use must additionally be ‘authorized by the Controlled Substances Act or other provision of Federal law,’ which marijuana is not.”

What happens if you do fail a drug test because of CBD? A medical review officer (“MRO”) is a “person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results.” An MRO acts as an advocate for the drug testing process and an independent and impartial gatekeeper. Under LabCorp’s guidelines, it is strongly recommended that any employer who receives a negative drug screen by one of their employees to have it reviewed by an MRO.

MRO’s provide “quality assurance review of the drug testing process for the specimens under your purview, determine if there is a legitimate medical explanation for laboratory confirmed positive, adulterated, substituted and invalid drug test results, ensure the timely flow of test result and other information to employers and protect the confidentiality of the drug testing information”

This allows for a second opinion on the drug screen ensuring that it was done correctly and being read properly. This is a double check on the lab’s practices to better assist employees. Lessening the employer’s ability to test for CBD and THC for workers off the job would assist in employees being able to continue working as well as using non-prescription opioids that can become addictive.

Opioids are proscribed by doctors, while CBD is often recommended by doctors for use alternatively from opioids. People in Indiana should not be disadvantaged for taking a more natural route in their healthcare as “approximately 90% of individuals with [opioid] addiction begin using illicit drugs before the age of 18.

There are two categories of illicit drugs. The first being illegal to process, sell, and consume cocaine, meth, and heroin and the second legal to process, sell, and consume when prescribed by a physician but then misused by the person who the drugs were prescribed or persons who obtained the drugs illegally.

Since 1999, the number of opioid poisoning deaths increased by 500 percent through 2015. According to the CDC, the “best ways to prevent opioid overdose deaths are to improve opioid prescribing, reduce exposure to opioids, prevent misuse, and treat opioid use disorder.” In Indiana in 2016 there were 794 opioid-related overdose deaths. This results in “a rate of 12.6 deaths per 100,000 persons compared to the national rate of 13.3 deaths per 100,000 persons. Synthetic opioids increased from 2012 through 2016 from forty-three to 304 deaths.

Indiana providers wrote 109.1 prescriptions of opioids for pain relief in 2015 per 100 persons. While in Colorado in 2013, providers wrote 69.8 opioid prescriptions per 100 persons with the United States rate at 79.3. Since 2013, the rate of opioid prescriptions has declined 6 percent in Colorado. In California in 2013, providers wrote 54.9 opioid prescriptions per 100 persons with a 12.8 percent decline in prescriptions between 2013 and 2015.

These statistics are not directly correlated with the use of medical marijuana in the above states, but it is something to be inferred by the data. As California was the first state in 1996 to legalize medical marijuana and Colorado first approved recreation marijuana use in 2012 there is the question to be risen as to whether the legalization of medical marijuana directly correlates to the reduction in opioid related deaths.

Is the legalization of marijuana the next step for Indiana? Possession of hash oil/marijuana includes a “person who knowingly or intentionally possesses marijuana, hash oil, hashish, or salvia.” By doing so, a person commits a Class B misdemeanor, unless the person has a prior offense, then it becomes a Class A misdemeanor. Dealing in schedule I or II substances ends with a person being convicted of a Level 5 felony only if the weight of the drug involved twenty-eight grams or more. Marijuana, under Indiana law, is defined as “any part of the plant genus Cannabis whether growing or not; the seeds thereof; the resin extracted from any part of the plant, including hashish and hash oil; any compound, manufacture, salt, derivative, mixture, or preparation of the plaint, its seeds or resin.”

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