By: Kathleen Wade, Esq.
On February 26, 2020, the Under Secretary of Defense for Personnel and Readiness for the Department of Defense issued a memorandum with new guidance for Service members related to the use of hemp products.
The memorandum notes that as a result of the 2018 Farm Bill, hemp products are now excluded from the definition of marijuana, provided that those products contained no more than 0.3 percent THC on a dry weight basis. The memorandum ultimately recommends that Service members avoid the use of products made or derived from hemp, given that it is not possible for drug testing to differentiate between THC derived from legal hemp products and THC that comes from “illicit” marijuana, and either could cause a positive THC urinalysis result.
The memorandum addresses an important gap in the law, and provides information that can be useful to employees and employers alike. Given that the FDA does not certify the THC content in commercially-available hemp products, and many products omit information about THC levels on product labels, employers who conduct drug tests for THC and employees who may be drug tested for THC need to be aware that hemp products may produce a positive drug test result. Particularly where the drug tests are performed to meet federal requirements, such as testing for CDL drivers, even if employers are able to determine that the positive result was the result of the employee’s use of a hemp product, employers still need to follow their policies and all federal guidelines for addressing a positive result. Therefore, employees subject to federal testing may wish to avoid the use of hemp products until this gap can be addressed by improved testing or new laws.
Kathleen is a member of Drummond Woodsum’s Employment & Labor, School & Education, and Litigation groups. She works with both public and private employers on a broad range of legal issues, including advising them on compliance with state and federal employment discrimination laws and drug testing laws, resolving issues regarding employee leave and employee discipline, and reviewing employment handbooks and policies.