Cannabis remains a Schedule I drug under the Controlled Substances Act of 1970. As such, the use, sale, and possession of cannabis in the United States remain illegal under federal law. Under state law, Texas has mirrored the federal government’s stance on the prohibition on marijuana and has generally refused to step back from imposing criminal penalties for cannabis-related crimes. In Texas, penalties related to cannabis offenses, such as possession, sale, and cultivation, can range from a misdemeanor and rise to the level of a state felony. In 2015, however, Texas followed the path of other states and passed the Compassionate Use Act providing persons with a qualifying condition the ability to be prescribed cannabis.
With the passage of the Compassionate Use Act, the Texas Legislature implemented the state’s first Compassionate Use Program (“CUP”). This bill initially allowed registered physicians to prescribe cannabis containing less than 0.5% tetrahydrocannabinol (“THC”) to patients suffering from epilepsy. Since its passage, the CUP program has been amended to increase the list of eligible conditions to now include epilepsy, seizure disorder, multiple sclerosis, spasticity, amyotrophic lateral sclerosis, autism, all terminal cancer, and incurable neurodegenerative disease. In the most recent amendment to the CUP, Texas Legislature passed H.B. 1535, which provides that effective September 1, 2021, all forms of cancer and post-traumatic stress disorder will be included in the list of qualifying conditions, and the maximum level of THC will be increased from 0.5% to 1.0%. The number of Texas residents that are currently prescribed medical cannabis through the CUP amounts to just 6,698 as of June 2021.
The Americans with Disabilities Act (“ADA”) prohibits discrimination against qualified individuals with disabilities and requires employers to provide reasonable accommodations for such individuals. However, under the ADA, a person currently engaged in the illegal use of drugs is not considered a qualified individual with a disability. See 42 U.S.C. § 12114(a). Illegal use of drugs is defined as the use of drugs considered unlawful under the Controlled Substances Act, which includes cannabis. While the ADA provides an exception for drugs taken “under supervision by a licensed health care professional, or other use authorized by the Controlled Substances Act, or other provisions of Federal law”, at least one federal court has ruled that medical marijuana users are not protected. See 42 U.S.C. § 12111(6)(A); see Barber v. Gonzales, No. CV-05-0173-EFS (E.D. Wash. July 1, 2005). Cannabis, whether lawfully prescribed or not, appears to still be an illegal substance as defined under the Controlled Substances Act. Therefore, the ADA does not provide protection to employees who are engaged in the current use of cannabis. See James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012).
Chapter 21 of the Texas Labor Code prohibits disability-based employment discrimination mirroring that of the ADA. See Texas Labor Code § 21.001(4). Texas law, similarly, excludes individuals engaged in illegal drug use, as defined in the Controlled Substances Act, from the protections afforded under Chapter 21. See id § 21.002(6)(A). Therefore, similar to the ADA, an individual subject to an adverse employment action due to their cannabis use cannot invoke the protection of Chapter 21 of the Texas Labor Code because cannabis is still an illegal drug under the Controlled Substances Act.
The 2018 Farm Bill is the first piece of federal legislation legalizing hemp and removing its Schedule I controlled substance designation. Specifically, it removed hemp with no more than 0.3% concentration of THC from the definition of marijuana in the Controlled Substances Act.
In 2019, the Texas Legislature passed House Bill 1325, similarly legalizing the use of hemp with no more than 0.3% concentration of THC.
House Bill 1325 and its federal counterpart distinguish between “hemp,” which is a cannabis plant containing no more than 0.3% of THC, and “marijuana,” which is a cannabis plant that contains more than 0.3% of THC. Hemp and hemp-derived products are now legal to produce, possess, and consume. Marijuana and marijuana-derived products remain a Schedule I drug under the federal Controlled Substances Act and are illegal to produce, possess. Simply put, if the CBD oil is derived from hemp, meaning the cannabis plant from which the oil was made had no more than 0.3% THC, then the CBD oil is legal. If the CBD oil is derived from marijuana, meaning the cannabis plant from which the oil was made had more than 0.3% THC, then the CBD oil is illegal.
As a result of the 2018 Farm Bill and the removal of certain hemp-based CBD from the Controlled Substances Act, the ADA would presumably protect a qualified individual with a disability if they were using CBD to treat their disability. Employers should, therefore, expect to soon be placed in a position where they may need to determine whether they will approve CBD use as a reasonable accommodation. There is very little guidance on this topic. However, when coming to a decision, an employer may always consider whether its use would present an undue hardship, or if it would present a direct threat to the workplace.
Under Texas and federal laws, there is no limitation on a private employer’s right to adopt drug testing policies for their workers. As it relates to drug testing for THC, private employers are allowed to test employees and applicants for THC and discipline them or refuse to hire them in the case of positive results. Similarly, a private employer may continue to rely on the federal government’s continued classification of cannabis as a Schedule I controlled substance to take adverse employment action against a person testing positive. However, with the recent legalization of certain hemp CDB, employees and applicants testing positive for THC, claiming only the use of CBD, will likely be a common occurs in the future.
There are several reasons why an employee or applicant may test positive for THC while using CBD. Currently, the main reason for false-positive tests is due to the ingestion of low-quality, mislabeled, CBD products. Remember, that under Texas law, hemp-extracted CBD oil should not have more than 0.3% of THC. CBD that is above this limit is considered illegal under both federal and Texas law. With that being said, it is not unusual for vendors to mislabel their goods as THC-free hemp when in fact it is cannabis extracted CBD that does contain THC. One study from Penn Medicine found that nearly 70% of the CBD products sold online were not properly labeled.
Currently, there are no commercially available drug tests that test specifically for the presence of CBD. Rather, the common broad-spectrum drug tests that are used by law enforcement and employers do not distinguish between CBD and THC. Consequently, it is difficult for an employer to determine whether the positive test result is a result of illegal cannabis use or legal CBD use. Therefore, in order to avoid disputes arising due to a potential false positive, it is recommended that if the employer’s true concern is the presence of THC, that the employer explicitly prohibit the presence of “THC” in the body, as opposed to using broad terms such as “marijuana” or “cannabis products”. Additionally, it may be advisable to warn employees that the use of unregulated CBD products or those that contain traces of THC may result in a positive test result.
