Can you be fired in NC for using CBD or Hemp? Yes, but it’s not cut and dry
In recent years, the sale of CBD-infused products, like gummies and drinks, has exploded across North Carolina.
But could consuming these products lead to testing positive for marijuana and being fired?
Yes, but it’s not cut and dry. Considerations include testing sensitivity as well as laws being considered in North Carolina and how existing laws are being interpreted — including in a case that goes to court next month.
At one point, firing someone for a failed marijuana drug test “was OK, because that was the end of the question. They failed it; it’s an illegal substance in their system,” said Tyler Russell, an attorney at Ward and Smith, P.A., a North Carolina law firm.
“That is not the case today. Hemp and hemp products are legal in North Carolina,” he said, “... and that makes all of this clear as mud,”
Both employers and employees need to be mindful of this uncertainty. Here’s a look at where things stand.
KEEP RECEIPTS?
Workplace drug testing in the state and across the country is fairly common, with many private and public employers checking whether employees consume any illegal drugs, including marijuana.
Testing for marijuana, which is born from the cannabis plant, looks for the psychoactive cannabinoid delta-9-tetrahydrocannabinol (THC), which produces the drug’s “high.” The sensitivity of these drug tests vary, with some looking for the presence of cannabinoids broadly (of which the cannabis plant has over a hundred), while other tests are more specific for THC types.
That testing got complicated when the federal government in 2018 removed hemp — defined as a derivative of cannabis with less than 0.3% of the delta-9 THC — from the definition of marijuana.
North Carolina permanently legalized hemp in 2022, having temporarily legalized it under a pilot program previously.
Also from the cannabis plant is cannabidiol (CBD), which is generally considered legal as well, if it has limited delta-9 THC. CBD affects receptors involved with appetite, anxiety, depression, pain sensation and other functions and can be added to topical creams, oils, food and other products, The News & Observer previously reported.
Complications with drug testing come from the sensitivity of tests and the accuracy of product labels, according to UNC School of Government professor Phil Dixon.
“Some proprietors claim that their products contain only CBD and no delta-9 whatsoever, and if you’ve got a product like that and it’s true, it shouldn’t be causing a positive analysis for the prevalence of Delta-9,” said Dixon, who follows the state of hemp in North Carolina and works with public defenders and defense lawyers.
But, “there’s no standardized regulatory structure to test this stuff before it goes on the shelves and is then sold to customers, So even if it claims not to have delta-9 THC, the consumer can’t be sure unless they’re getting their own analysis done,” he said, adding that many of the cannabis products on the shelf that are legal can produce a “high” effect similar to marijuana.
One example of this is Delta-8, often referred to as “weed light,” which can be bought in North Carolina but has been flagged by the Food and Drug Administration as lacking safety tests. The chemical structure of Delta-8 is also almost identical to that of Delta-9, making it hard to distinguish in tests, according to Good Rx, a U.S. health care company.
Other factors affecting drug testing: how long THC stays in a person’s system, as well as accumulation rates of Delta-9 after long-term use of legal hemp.
“If I was advising a consumer, I’d say, keep your receipt, document your use, self-test at home. So you know when you start showing a positive and then you can take a break, or dial back your dose,” Dixon said.
But there’s no clear, easy answer for somebody who works in a position where they’re gonna get drug tested and uses these legal products,” he said.
LEGAL FRAMEWORK FOR EMPLOYERS AND EMPLOYEES
North Carolina, like much of the rest of the county, is an employment-at-will state, which means that an employer can largely terminate an employee at any time for any reason, except an illegal one, such as discrimination. This at-will presumption can be modified with a contract.
A person who uses hemp and is fired for marijuana consumption could fight the termination if they believe it was due to discrimination, or if it falls under the state’s lawful use of lawful products statute, which limits employers from restricting employees from using lawful products during nonworking hours.
“If an employee fails a drug test for the presence of THC, that employee might have done something illegal, but they might not have done something illegal, so the employers kind of bear the burden at this point in time of taking additional steps to try and investigate and figure out whether or not there is cause or justification for taking whatever action it is,” Russell said.
“A positive drug test is just not enough to safely terminate or reprimand an employee today,” said Russell, who co-chairs the firm’s Hemp Law practice group.
Asked about dismissals for testing positive for marijuana because of alleged hemp or CBD use, Devon Freed with the North Carolina Office of State Human Resources said state employees with career status can be dismissed only with just cause ,which requires that employers have a valid reason for doing so. They can file a grievance challenging whether just cause existed, Freed said.
While employers run the risk of being sued for unlawful termination, this does not mean employees win those cases.
Just this March, a federal judge released a Greensboro development company from a former employee’s lawsuit accusing it of firing her because she tested positive for marijuana, and asserting claims under the Americans with Disabilities Act for wrongful discharge.
The plaintiff said she used CBD products to treat anxiety and muscle spasms. But U.S. District Judge Loretta Biggs wrote in her ruling that there was no proven disability or wrongful termination. Biggs also struck down claims under the lawful products law.
But this decision was appealed and will be considered in January in the U.S. 4th Circuit Court of Appeals, which has jurisdiction over Maryland, North Carolina, South Carolina and more. Some of the states in its jurisdiction have legalized marijuana.
For Wilson Fong, the lead attorney in this case, a positive result from the appeal “would be drug testing generally just isn’t going to be allowed as a reason to terminate somebody with a disability.”
Fong expects the court will instead “find some way to limit it. Courts tend to be pretty conservative. But of course, I could be wrong and it could just go totally in the way the wind seems to be blowing, which is in favor of legalization and against punishments,” he said.
NORTH CAROLINA LEGISLATURE WEIGHS IN
In the most recent legislative session, state lawmakers filed a House bill that would create new regulations for hemp products, including restricting selling a hemp-derived consumable product to anyone under 18 and requiring more stringent testing of products.
The bill, which died in the Senate, touches on employment law, stating that nothing in it would “create a cause of action against an employer for wrongful discharge or discrimination” and that nothing within it requires an employer to accommodate hemp use by employees.
State senators this year approved a bill legalizing medical marijuana. This bill, which has been filed in past years as well, failed in the House. A lead sponsor of the legalization bill has said he thinks it will be taken up during the short legislative session, which starts in May.
