Answer

If an employee informs the employer that they are using a CBD product, what is the employers responsibility if that employee is in a safety-sensitive position?

The employer’s responsibility is to explain that there is no exception (under DOT regulations) for the use of any product that presents as THC metabolites and exceeds set thresholds on a DOT drug screen. If it is non-DOT, they should refer to the company policy. If the policy accepts CBD oil, then that should be communicated.

A recent case involving a major retail chain fired an Arizona employee for testing positive for marijuana despite the fact that they possessed a medical marijuana card and disclosed that information prior to taking a urinalysis. The company claimed that they were protected under the state’s Drug Testing of Employees Act, but the judge ruled that the company couldn’t prove if the employee was impaired at work. It’s advisable that employers do not terminate Arizona employees who hold a valid medical marijuana card based solely off of a positive marijuana drug test result. Companies’ should ensure that they provide employee education and reasonable suspicion training for managers, implement a medical disclosure policy, and establish a documentation process. If a terminated employee later sues for wrongful termination, this documentation and an established process, could be a deciding factor in your case.

Drug and Alcohol Testing related

Which CCF forms have changed?

The Department of Transportation (DOT) recently made two key changes to DOT-regulated Custody and Control Forms (CCF), which is pertinent to those using paper forms. The first change is the addition of a Commercial Driver's License (CDL) state and number. The second change is that the new form accommodates the future use of oral fluid (saliva) specimens for DOT testing. More information can be found on our article "DOT-Regulate CCF Changes You Need to Be Aware Of".

An employer would follow the “accommodation” guidelines as indicated in their employment policy. The corporate HR group should assess whether or not efforts have been appropriate and should indicate when those efforts have been exhausted. Reasonable accommodations are changes made to accommodate a person’s disability, i.e., allowing someone to sit instead of stand, modifying work schedules, modifying work duties, placing an employee on leave until they complete all medication, etc.