On Dec. 20, the federal government amended the Controlled Substances Act to remove hemp-derived Tetrahydrocannibinol (THC) from Schedule One. While it is widely known that the 2018 Farm Act legalizes hemp and hemp based-products including CBD, Section 12619 of the act explicitly removes hemp-derived THC from Schedule One. Hence, the molecule is no longer in itself federally illegal. Its legality depends, rather, on its provenance.
Likewise, at the state level, Senate Bill 238 legalizes hemp and hemp-based products for retail sale. This includes not only CBD products, but other hemp-based products with THC levels below 0.3%.
Of course, some might assume that the minimal and nonpsychoactive levels of THC found hemp are not enough to trigger a positive test. Yet, as far back as the July 1997 issue of the Journal of Analytic Toxicology, published studies have established that the use of hemp products can result in THC metabolite levels as high at 87 ng/ml (well above the standard DOT cut-off for urinalysis).
Perhaps the most important consequence of this change in the law is that employees who use hemp-based products for medical purposes are now protected by the Americans with Disabilities Act. Employees who have a written recommendation from their physician that they use hemp or a hemp-based compound such as CBD and retain their receipt for a 2018 Farm Act compliant product, now have legal recourse if their employer were to terminate them for a positive THC urinalysis.
Similarly, because of the Farm Act’s change to the Controlled Substances Act, positive THC urinalysis no longer puts employers in jeopardy of violating the federal Drug Free Workplace Act. In other words, since hemp-derived THC is no longer illegal at either the state or federal level, employee use is now consistent with zero-tolerance workplace policies on illegal drugs.
Moreover, while House Bill 2612 (the so-called “Unity Act”) gives employers the option of prohibiting safety-sensitive employees from using medical marijuana, the removal of hemp-based THC from Schedule One means it is incumbent on employers to determine whether a positive test is due to the use of legal hemp-based THC or federally illegal marijuana-based THC. Without such a determination, employers who simply take action against employees on the basis of a positive urine test may face civil action for violating the ADA (as well as the Oklahoma Anti-Discrimination Act).
Workplace impairment is, of course, a serious issue. But because urine tests do not detect THC itself, but the nonpsychoactive metabolite THC-COOH, which can be detected for up to three months, the use of urinalysis to assess impairment has always been bad science. Now, as well, in light of the removal of hemp-based THC from Schedule One, a positive test doesn’t even indicate that any laws have been violated. This has implications for employment policies, medical treatment (including pain management and organ transplant eligibility), eligibility for public assistance including Section 8 housing, and DUI laws.
The DEA has issued an internal directive on the changing federal status of hemp and hemp-based products. Oklahoma businesses, physicians, landlords, law enforcement and other entities need to adjust their policies likewise.