Many of you have had this experience: an employee who fails a drug test by testing positive for marijuana protests that they have never smoked weed or consumed an edible. What they have done, however, is take CBD or another legal hemp product. Or maybe you have been that employee. To learn an employer’s options in such a situation, read on.

Background

Here’s just a quick summary of the law on drug testing government employees. There are three kinds of drug tests: tests based on suspicion that an employee is under the influence, tests that are part of a random drug-testing program, and pre-employment drug tests.

Public Employee Drug Testing Based on Reasonable Suspicion

When a public employer requires an employee to take a drug test, it’s considered a “search” under the Fourth Amendment to the U.S. Constitution. This means the employer needs reasonable individualized suspicion that the employee is using illegal drugs before ordering a drug test.

A government employer doesn’t need a written policy to conduct employee drug testing. All it needs is reasonable, individualized suspicion that a particular employee is using drugs. When it has that, the government’s interest in having a drug-free workplace will outweigh the employee’s privacy interest.

What constitutes reasonable suspicion? To satisfy the Fourth Amendment, a government employer must be able to point to specific, objective facts and rational inferences drawn from those facts before requiring an employee to undergo a drug test.

Random Drug Testing for Safety-Sensitive Jobs

Random drug-testing of safety-sensitive employees is an exception to the reasonable suspicion rule. Government employers may require random drug testing of employees in safety-sensitive positions, without having any individual suspicion, because they have a compelling interest in protecting public and employee safety.

For example, a law enforcement officer carrying a firearm or a driver operating a 10-ton sanitation truck while impaired could pose serious safety risks. In jobs such as these, a moment of impairment can have serious, even deadly, consequences.

Courts define safety-sensitive positions as those where:

• Duties involve “such a great risk of injury to others that even a momentary lapse of attention can have disastrous consequences,” or
• A single mistake may have “irremediable consequences” where the employee won’t have a chance to recognize and fix their mistake and other personnel won’t be able to intervene before harm occurs.

That’s why courts have allowed employers more leeway in testing employees in these roles. But remember, since most positions pose no threat to safety, a government employer cannot randomly test all employees. On drug testing safety-sensitive positions, see here and here.

Pre-employment Drug Testing

In North Carolina, pre-employment drug testing of all applicants for state and local government jobs is lawful.

For a more detailed discussion of public employer drug testing, see here.

CBD, Hemp Products and the Law

Before we look at the law of drug testing as it applies to CBD and marijuana, let’s look at those substances and how they related to each other, especially CBD and THC.

Cannabis Plants: Marijuana v. Hemp

Cannabis sativa is the plant species from which both marijuana and hemp come, but they are derived from different varieties. Both contain multiple compounds called cannabinoids, but with important differences:

• Marijuana contains high concentrations of tetrahydrocannabinol (THC), the psychoactive compound that causes a ‘high” and lower levels of the compound cannabidiol (CBD).
• Hemp has the opposite profile, containing high concentrations of CBD and very low concentrations of THC.

Unlike marijuana, CBD doesn’t produce a high. It is often claimed to help with relaxation and stress relief, and to have other potential therapeutic benefits, but scientific evidence for these claims is limited.

The Legal Status of Marijuana

Marijuana remains a controlled substance under federal law, and the Drug Enforcement Administration (DEA) considers its use unlawful. The Food and Drug Administration (FDA) does not regulate marijuana or marijuana products.

Because marijuana is illegal, only limited research has been conducted on its potential medical uses. Anecdotally, marijuana has reportedly helped with:

• stimulating appetite in AIDS/HIV patients;
• improving muscle spasticity in multiple sclerosis patients; and
• alleviating symptoms of chronic pain, epilepsy, and post-traumatic stress disorder.

For these reasons, thirty-nine states have legalized marijuana for medical purposes (as of April 1, 2025). North Carolina has not yet done so.

CBD and Hemp Products: Legal, But Only If They Do Not Exceed THC Limits

Under both federal and North Carolina law, the sale and use of CBD and other hemp products is lawful, so long as they contain no more than 0.3% of THC on a dry weight basis. That 0.3% threshold was established by the federal Agricultural Improvement Act of 2018, which removed hemp with less than 0.3% THC from the federal Controlled Substances Act. In its 2021-22 session, the North Carolina General Assembly amended NCGS §90-94, part of the North Carolina Controlled Substances Act, to do the same thing – remove hemp with less than 0.3% THC from the list of illegal drugs.

CBD and Employment Drug Testing

People sometimes assume that because CBD products do not produce the “high” that marijuana does, it won’t show up on a drug test for marijuana. That’s simply not always true.

Most drug tests don’t look for CBD – they look for THC, the psychoactive compound found in marijuana. These tests measure whether the amount of THC in a person’s body exceeds a certain threshold set by the employer.

Here’s the problem: CBD products are not regulated by the FDA or any other agency. So even if a product is labeled as THC-free or hemp-derived, there’s no guarantee it contains less than 0.3% THC—the legal limit under both federal and state law.

In one study cited by the Mayo Clinic, researchers analyzed 84 CBD products sold online. Eighteen of them contained measurable amounts of THC. So regular use of such a product could, over time, cause a person to test positive for marijuana—even if they never used marijuana itself. That’s especially true because THC can remain in the body for two to three weeks.

What Should Employers Do?

Employers have two kinds of employees – those who must have a commercial driver’s license and a far greater number who do not.

CDL License Holders

If an employee holds a Commercial Driver’s License (CDL) or works in another job covered by the U.S. Department of Transportation (DOT) drug-testing rules – such as a transit dispatcher – employers must treat any positive test for marijuana metabolites as a failed drug test, even the employee says the results was caused by CBD.

Here’s what DOT says:

“ . . . . 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 . . . . Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”

In short, DOT-regulated employees assume the risk that they may fail a drug test when they choose to use CBD. If an employee’s drug test comes back positive and the employee claims the result is due to CBD, employers must follow the procedures set forth in the DOT regulations for a positive drug-test even if that ultimately results in the employee being suspended or terminated.

Non-CDL Employees (Most Employees)

For other public employees, the law is less clear. Employees who test positive for marijuana and claim it was due to CBD use generally raise two legal arguments:

1. They may say that the Americans with Disabilities Act (ADA)  requires that their employer accommodate them because they use CBD to treat a disability; or
2. They may say that CBD is a lawful product and the law prohibits employers from disciplining employees for using a lawful product outside of working hours.

The Americans with Disabilities Act and CBD Use

There are few cases that directly address the question of whether an employer must change its drug-testing policies as an ADA accommodation for an employee whose use of CBD results in a positive test result. Cases from other jurisdictions where medical marijuana is legal have held that employees do not have a right to an ADA accommodation based on medical marijuana use. Since the use of CBD and other hemp products presents similar legal issues, courts seem likely to treat them the same way – at least when the product causes a positive drug test. Why is that?

It’s because the ADA does not require employers to accommodate the use of illegal drugs, even for disability management. While the ADA prohibits discrimination against qualified individuals with disabilities, it explicitly excludes employees and applicants currently using illegal drugs:

A qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such drug use.

“Wait!”, you might say. How could that be true in a state where medical or recreational marijuana is legal? It is true because the ADA defines “illegal drug use” by reference to the federal Controlled Substances Act (CSA)—which classifies marijuana (and any product containing more than 0.3% THC) as an unlawful Schedule I controlled substance. Even in states where marijuana use is legal, it is still illegal under federal law.

So, if an employee is using a CBD product that contains more than 0.3% THC they are engaging in illegal drug use under federal law. In that case, the ADA would not require the employer to excuse or accommodate the positive test.

Three Recent Cases on CBD Use and the ADA

Three recent cases involving employees who claimed their positive drug tests were due to CBD use offer some additional guidance.

The first case is from the federal Fourth Circuit Court of Appeals (which has jurisdiction over North Carolina). The employee in this case, Tonya Anderson, had never told anyone other than her immediate supervisor that she suffered from anxiety and joint pain. When she tested positive for marijuana on a random drug test, she explained that she had never smoked or ingested marijuana in any form but that she did take CBD, as well as a combination supplement of other hemp-derived products. Her employer rejected her excuse. Anderson failed a re-test and was fired.

The Fourth Circuit ruled in favor of the employer, rejecting Anderson’s argument that by failing to adjust its drug-testing policy to account for CBD use, it discriminated against people with disabilities who are helped by CBD (by failing to accommodate them). The court also found that Anderson had never actually requested an accommodation of this or any kind.

In a Tennessee case, a parks and recreation department employee suffering from anxiety and bipolar disorder self-medicated with CBD and was fired after testing positive for THC on a random drug-test. The court found in favor of her city employer, saying that the employer could not have discriminated against her because she had never informed her employer about her disability and because she had not shown that allowing CBD use was necessary for her to perform her job functions and thus worthy of consideration as an accommodation.

Finally, in a federal Third Circuit Court of Appeals case, employee Cherie Lehenky also lost her ADA discrimination claim. Lehenky used CBD oil to treat an autoimmune disease. Right before taking a drug test, she informed her employer that she used a supplement that might cause a positive result for THC. Her employer fired her then and there for violating its policy requiring employees to report use of prescription or OTC drugs while working to the human resources department. Like the employees in the two cases discussed above, Lehenky never told her employer of her disability. Again, as in the other two cases, the Third Circuit found that the employer could not have discriminated against the employee on the basis of disability where it was unaware of her disability.

CBD and North Carolina’s Lawful Use of Lawful Products Statute

In addition to its ADA holding, the Anderson case is noteworthy as the first to address N.C.G.S. § 95-28.2, North Carolina’s “Lawful Use of Lawful Products” statute. This law prohibits employers from taking adverse action against employees for using legal products (tobacco, for example) off-site during non-working hours so long as that use does not affect the employee’s job performance or affect workplace safety.

However, the prohibition has three exceptions.

1. Employers may restrict lawful product use during nonworking hours if the restriction is related to a legitimate job-related need and is reasonably related to the employee’s work.
2. Employers may restrict lawful product use if the restriction relates to fundamental organization goals.
3. Employers may discipline or discharge employees who fail to comply with the requirements of substance abuse prevention programs.

In the Anderson case, the Fourth Circuit found that Anderson’s termination did not violate the lawful use statute for two reasons:

• First, Anderson failed to show that the hemp-derived products she used were, in fact, legal. Under both state and federal law, the critical distinction between marijuana and hemp (and between legal and illegal hemp products) is a product’s delta-9 THC concentration. It must be 0.3% or less to be lawful. Without evidence of the THC concentration in the products Anderson took, the court could not conclude they were legal.
• Second, Anderson’s employer satisfied the “bona fide occupational requirement” exception. The court found that maintaining a safe and productive work environment is a bona fide occupational requirement reasonably related to the company’s employment activities.

At first blush, the lawful use statute might seem to provide CBD users with a defense against the evidence of a test result that is positive for marijuana. However, the fact that CBD products are unregulated and oftentimes unreliable as to their claims of THC content make this defense illusory, as does the Fourth Circuit’s broad interpretation of the bona fide occupational requirement exception – after all, most employers who engage in drug testing do so to maintain a safe and productive work environment.

What About Delta-8, Delta-10, THC-O and HHC?

CBD is not the only hemp-based product on the market. Other cannabinoids are becoming increasingly common and creating additional complications for workplace drug testing.

Delta-8 THC occurs naturally in both hemp and marijuana but only in trace amounts. Instead, it is usually extracted from CBD. Delta-8 THC is an isomer of Delta-9 THC (the primary psychoactive component in marijuana), meaning that it is one of two or more compounds that contain the same number of atoms of the same elements but differ in structural arrangement and properties. According to the FDA, Delta-8’s psychoactive and intoxicating effects are like, but somewhat milder than those of Delta-9 THC. Users report that Delta-8 THC helps combat anxiety, pain and nausea, but there has been limited research into Delta-8 compared with CBD and Delta-9. The FDA has not approved Delta-8 THC for any use.  

Delta-10 THC is milder than Delta-8 and is the newest THC compound to be marketed. It is also the least researched with respect to therapeutic effects.

THC-O and HHC are also hemp-derived cannabinoids extracted from CBD.

The Legal Status of Delta-8 and Delta-10

Like other hemp-derived products, both Delta-8 Delta-10 are legal if their Delta-9 THC concentrations are below 0.3%. But as unregulated products, there are no guarantees that a product containing Delta-8 or Delta-10 has a THC concentration below the legal limit. As with the use of CBD, under the Fourth Circuit’s decision in the Anderson case, an employee who fails a drug-test and attributes that failure to the use of Delta-8 or Delta-10 has the burden of proving that the product they used fell within the 0.3% legal limit for Delta-9 THC.

The Legal Status of THC-O and HHC

For employment-based drug-testing purposes, the key issue with THC-O and HHC is again the concentration of Delta-9 THC in the sample and whether the employee can prove that the product they used stayed below the legal limit.

The federal Drug Enforcement Administration, however, takes the position that THC-O and HHC are synthetic cannabinoids and, therefore, are controlled substances whose use is illegal under all circumstances, regardless of the amount of Delta-9 THC they contain. In the Anderson case, however, the Fourth Circuit disagreed and held that THC-O and HHC are lawful hemp products so long as the amount of Delta-9 THC they contain is no more than 0.3%.

CONCLUSION

The current state of the case law addressing CBD’s role in causing employees to test positive for marijuana makes clear several important points. First, and most importantly, employers do not have to disregard positive marijuana test results when an employee claims they result from legal CBD use. To bring a successful claim under North Carolina’s Lawful Use of Lawful Products statute, an employee would have to be able to prove that the product they had taken prior to the drug test contained no more than the legal limit of 0.3% THC. It is extremely unlikely an employee would be able to do that.

Second, before an employee can bring a claim of disability discrimination based on a failure to accommodate, the employee must have informed the employer of the existence of a disability before the failed drug test and must expressly ask for an accommodation allowing the use of CBD products. But even where an employee has satisfied both these requirements, the employer does not have to grant such an accommodation: under the ADA’s definition of illegal drugs, any product with more than 0.3% THC is unlawful. The ADA excludes from its protection users of illegal drugs.

All that being said, an employer may still take a more flexible approach when an employee attributes a failed drug test to CBD or other hemp-based products. Employers have the discretion to:

1. treat the positive result as a failed drug test and discipline or discharge the employee;
2. accept the employee’s explanation and exempt them from marijuana testing;
3. enter into a last-chance agreement where the employee agrees not to use CBD products that exceed the THC limit.

Different approaches will suit different workplaces. But the claim that an employee has a “right” to use CBD won’t take them very far when it comes to drug testing.