A New Issue With Cannabis and Drug Testing

By on October 3, 2018

A federal court in Connecticut held that the refusal to hire a medical marijuana user because she tested positive on a pre-employment drug test violated state law.  Before you wonder why should you care about Connecticut state law, read on.

The plaintiff had been diagnosed with post-traumatic stress disorder.  She took one capsule of a synthetic form of cannabis each night as her physician prescribed.  During the application process, she also shared her medical marijuana registration.  But, when her drug test returned positive for marijuana, her offer of employment was rescinded.  The plaintiff sued under state law, alleging that it permitted the use of medical marijuana for qualifying patients.

The court found the employer’s arguments based on the federal Drug-Free Workplace Act and False Claims Act unpersuasive.  Likewise, the court did not accept the employer’s contention that it did not discriminate based on the plaintiff’s status as a medical marijuana user, but rather it rescinded the offer of employment based on her positive test result.  This decision indicates the growing trend favoring employees is the crossroads of employment and lawful medical marijuana use.

So, why does this Connecticut case matter around here?  Medical cannabis oils (called CBD) are now allowed by prescription in Virginia and some other states in the area.  The lawful use of CBD could result in a positive drug test.  Although CBD itself may not always be detected as THC on a urine drug test, it is possible for CBD products to contain THC given both are extracted from the cannabis plant.  The legal limit for the amount of THC allowed in CBD products is variable, ranging from 0.3% to 7%.  The purification processes for CBD products are not currently regulated by the Food and Drug Administration (FDA), leaving little opportunity for mandated CBD to THC ratios to be controlled.  Additionally, some evidence suggests that CBD is converted to THC in the stomach after oral ingestion. Given these factors, it is possible for use of a CBD product to result in a THC-positive urine drug test.

This is not a problem that will happen everywhere and every day. But, at some point it will happen.  The notion that an applicant is disqualified because of a positive drug test may have to be adjusted based on the prescribed and lawful use of cannabis oils.

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