Department of Transportation Issues Notice on Use of CBD Products by Safety-Sensitive Employees

The Department of Transportation’s (DOT) recent notice on the use of cannabidiol (CBD) products serves as a warning to employees in DOT-defined safety-sensitive positions. While the DOT has always had clear regulations strictly prohibiting the use of marijuana for truck drivers, school bus drivers, train engineers, pilots, transit vehicle operators, and the like, the increasingly widespread use of CBD products created a gray area with regard to testing. This notice makes clear that CBD use does not excuse a positive drug screen and therefore safety-sensitive employees may want to be wary of using CBD products.

DOT’s Notice on CBD Products

On February 18, 2020, the DOT issued its “DOT Office of Drug and Alcohol Policy and Compliance Notice,” on the use of CBD products by safety-sensitive employees who are subject to the DOT’s drug-testing regulations. These products include the increasingly popular CBD alternatives available on the market today. In 2018, President Donald Trump signed the Agriculture Improvement Act of 2018 (Farm Bill) (Pub. L. No. 115-334), which legalized industrial hemp at the federal level. The DOT’s notice observes that “hemp” has been removed from the definition of marijuana under the Controlled Substances Act. Therefore, hemp-derived products containing up to 0.3 percent of tetrahydrocannabinol (THC), the psychoactive component of the cannabis plant, are not controlled substances.

With that as background, the DOT notice emphasizes the following three points for both employers and safety-sensitive employees with regard to the use of CBD products:

1. The Department of Transportation requires testing for marijuana and not CBD.
2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

Though not law, this notice may give employers needed and appreciated guidance on the use of CBD products and how the DOT will enforce their use by employees in safety-sensitive positions. The DOT will not test for CBD, but the notice warns safety-sensitive employees against the use of highly-unregulated products containing the substance.

Key Takeaways for Employers

The increasing popularity of CBD products has sparked inquiries in almost all industries, but especially by those DOT-regulated employers that employ safety-sensitive employees. This notice may give those employers some clarity on safety-sensitive employee use of CBD products.

Importantly, CBD products are not illegal, and neither is their use. CBD products are those products that contain less than 0.3 percent of THC, and therefore do not fall within the legal definition of marijuana under the Controlled Substances Act. Products with less than 0.3 percent of THC should not trigger a positive drug screen, and the DOT does not test for CBD oil.

However, CBD use is not an excuse for a positive drug screen. As the notice explains, CBD products are highly unregulated and may contain more than 0.3 percent of THC, even if their labels indicate the contrary. This means that the use of CBD products could trigger a positive drug test for THC, and any such test result will be treated as would any other result that is positive for THC. Employers may want to make their employees aware of the notice, as employees may not seek out the notice of their own accord.

The legalization and use of recreational and medical marijuana, and cannabis products, such as CBD, continue to present unique issues for employers. Ogletree Deakins will continue to monitor state legislation and will post updates on the firm’s Drug Testing blog as additional guidance becomes available.