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Sunday, December 09, 2018 1:00 am

CBD oil a curveball for drug testing

Some employers are rethinking policies

RON SHAWGO | The Journal Gazette

A legal dose of medical CBD oil – a hemp extract – should not tank a company drug test, but neither should employees expect it to mask drug use, experts say.

Indiana legislators this year legalized CBD oil that contains 0.3 percent or less of THC, the psychoactive ingredient in marijuana that causes people to get high. CBD, or cannabidiol, has been used by epilepsy patients and to treat other serious to moderate afflictions. It is said to have anti-inflammatory and anti-anxiety effects, though those benefits are largely untested.

While CBD has gained popularity, businesses are not scrambling to accommodate its use, said attorney Mark Kittaka, a partner with Barnes & Thornburg in Fort Wayne who deals with employer issues. Based on the low percentage of THC allowed in CBD, “It seems it would be very unlikely” to test positive for marijuana, he said.

Even in states where marijuana use is legal, the laws are clear that companies can prohibit employees from being under the influence at work, Kittaka said. It's similar to alcohol, which is legal but prohibited by most employers, he added.

“I think there's some concern: Is this going to create a false positive or not?” he said. “But even when an employee comes to you and says, 'I only tested positive because I took CBD oil' ... it's still not a defense.”

Mike Ripley, vice president of health care and employment law policy at the Indiana Chamber of Commerce, has a similar response.

“We're telling employers that, look, if they're testing positive and they're using CBD, then they've gotten CBD that's a higher threshold of THC or they're using marijuana,” he said.

Ripley and Kittaka said they had heard of some employees claiming CBD use as an excuse for a positive result on a drug test. Both said legal CBD should not turn up on a test.

“It's just like people who'd say, 'I ate a poppyseed bagel, and that's why I tested positive for opium' or whatever,” Kittaka said. “I've had people say things like, 'I've got a medical condition and it makes me test positive for alcohol.'”

CBD is supposed to have such a low percentage of THC “that you'd have to really be abusing it to test positive, and in that situation then it's like, 'OK, then you are in violation of the policy,'” he said.

Still, WTHR-13 in Indianapolis reported in September that “an inability of employment drug tests to differentiate between marijuana and CBD oil is prompting some employers to now re-think their drug testing policies.”

Parkview Health, northeast Indiana's largest employer, issued this statement in late November from Dr. Michael Knipp, certified medical review officer: “CBD oil, like any supplement, is not FDA-regulated and thus there is no guarantee that the label on the product accurately reflects what substances are present and in what quantities.

“Drug test results positive for THC do not distinguish between marijuana use and CBD oil, which, per Indiana law, is permitted to be 0.3% THC. As such, Parkview Health's medical review officers are unable to accept CBD use as a defense for a THC-positive test result. The effect of CBD oil on a person's mental and physical abilities is a subject of ongoing clinical research.”

Parkview's drug-free workplace policy was recently updated to include that information, Knipp said. Parkview employs nearly 8,000 people in Allen County, according to numbers compiled by the Community Research Institute.

Lutheran Health Network, the county's second largest employer, has not made changes to its substance polices, spokesman Geoff Thomas said in an email. Lutheran employs nearly 5,000 people in the county.

“Health care facilities in our network are committed to patient and workplace safety,” Thomas said. “As part of that commitment, employees are expected to comply with applicable laws on substance use.”

The city of Fort Wayne also has not made any policy changes.

Spokesman John Perlich said he was not aware of any issues related to CBD among city employees. The city follows federal transportation department guidelines for employees with a commercial driver's license, which have not changed for marijuana use. It also follows the National Institute on Drug Abuse in prohibiting the use of marijuana for all employees, he said in an email.

“It's too early to predict if it's something that will need to be addressed,” Perlich said, “but it has been and continues to be on our radar.”