USDOT safety-sensitive employees cannot use cannabidiol ("CBD") products without impunity.  On February 18, 2020, the U.S. Department of Transportation’s Office of Drug and Alcohol Policy and Compliance (“USDOT”) issued a Policy and Compliance Notice (the “Notice”) that the use of CBD products by USDOT-regulated employees may result in a positive drug test result.

The USDOT’s Notice only affects certain safety-sensitive employees.  Safety-sensitive employees subject to drug testing by the USDOT include pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important to note that the USDOT drug tests safety-sensitive employees for the presence of marijuana, not CBD.  This distinction, however, provides little safeguard for safety-sensitive employees consuming CBD products.

Under the 2018 Farm Bill, hemp-derived CBD products containing a concentration of up to 0.3% tetrahydrocannabinol (“THC”) (the primary psychoactive component of marijuana) are no longer classified as a controlled substance.  Thus, CBD products containing concentrations of no more than 0.3% THC may be purchased and consumed, subject to approval by the Food and Drug Administration (the “FDA”).

Due to the limited presence of THC in CBD products, compounded with the fact that the FDA does not currently certify the actual concentration of THC in CBD products marketed for sale, the consumption of CBD products may result in a positive drug test result for marijuana, regardless of the fact that the individual only consumed CBD products.

While the use of CBD products is legal, the USDOT is asserting that the consumption of CBD products is not a legitimate medical explanation for a USDOT laboratory-confirmed positive result for marijuana. The USDOT states that its Medical Review Officers will verify a drug test confirmed at the “appropriate cutoff” as positive, even if an employee claims they only used a CBD product.

Though the USDOT has not expressly prohibited its employees from using CBD products, safety-sensitive employees should exercise caution when considering whether to use CBD products.