Can You Be Fired for Using CBD as a Federal Employee?

Attorney Justin Schnitzer

Written by: Attorney Justin Schnitzer

Experts In This Article

In the 2018 Farm Bill, hemp production and the natural non-psychoactive compound cannabidiol (CBD) were made federally legal. This has allowed farmers to grow cannabis plants for hemp (rope and fabric) as well as other products made with the same crop. Federally legal cannabis products can contain any amount of CBD but must contain less than 0.3% THC by dry weight. THC is also a natural compound found in cannabis plants, and low-THC strains must be cultivated to meet this goal.

CBD has been found in many verified studies to provide benefits ranging from inflammation and pain management to anti-convulsive effects. As a phytonutrient, it has many therapeutic properties, and, by law, federal employees should be able to consume or handle CBD products safely, provided they derive from legal hemp plants with less than 0.3% THC. 

But is it really safe? Federal employees have been fired since the 2018 farm bill for CBD use. The question is why and how safe CBD use really is for those who work for the federal government. If you are a federal employee fired for CBD or are at risk due to legal CBD use as a federal employee, the federal employment attorneys of the Law Office of Justin Schnitzer are here to help.

Can a Federal Employment Lawyer Help Me Avoid Being Fired After Taking CBD?

Taking CBD should be legal for federal employees, but it comes with a big risk: You might test positive for THC even if your CBD product was legally manufactured from hemp-only sources. As an increasing number of federal employees are penalized or even fired for CBD use, this is drawing attention to this problematic gray area issue. A skilled federal employment lawyer can help you defend yourself if you fear that you will be fired for CBD use as a federal employee.

The problem is a matter of certification, transparency, and testing accuracy. While the federal government has a zero-tolerance policy on THC present in drug tests, the law and the policy have become misaligned. This misalignment is penalizing innocent, sober federal employees who partake in legal therapeutic substances. Get in touch with a federal employment lawyer with experience in CBD cases by contacting The Law Office of Justin Schnitzer at (202) 964-4878 or through our online form.

Zero Tolerance for THC by Federal Law

THC is the psychoactive compound found in cultivated marijuana plants that has been the subject of much controversy.

THC is classified federally as a Schedule 1 drug, a dangerous chemical with no medical applications alongside drugs like heroin and methamphetamine. No matter where you stand on the matter of THC and state law legalization, there is a mandatory zero-tolerance policy for the presence of any Schedule 1 substance in a federal employee’s drug test results. This, of course, includes THC.

If an approved drug test detects any amount of THC or traces of THC’s presence in a federal employee drug test, that employee is at risk of being fired or otherwise disciplined. Due to the zero-tolerance policy, this is true even if the THC test result did not come from partaking in THC products.

The 2018 Farm Bill for Federal Employees

The 2018 Farm Bill was an important moment in the legality of the cannabis plant and products derived from it. Intended to reintroduce hemp to the American market, the bill made it possible to grow Cannabis plants so long as they included 0.03% THC or less. 

The farm bill not only legalized the production of hemp plants but also any product derived from hemp that meets the legal standard. Because the cannabinoid CBD is prominent in plants grown for hemp, this enabled the creation of CBD products, including topicals (creams and ointments), hemp flower, vaporizer oil, and edibles that contain high amounts of therapeutic CBD.

According to federal law, it is legal to use or consume hemp-derived CBD as long as it does not contain more than 0.03% THC. This law structure should apply to federal employees, making it possible to partake in legal CBD products without concern. But this is not how it works in practice.

THC Testing is Not Precise Enough for Legal CBD Use

The first and biggest problem is that THC testing does not offer the precision necessary to determine whether a positive result was caused by legal or illegal activity. Let us explain.

THC testing seeks to detect an enzyme that is produced when the body processes THC. The test also only supplies information on whether or not the enzyme is present and doesn’t return an accurate estimate of the amount of THC that may have created the enzyme.

Currently, the federal employee testing procedure is still configured for all presence of THC being the result of marijuana exposure. However, because trace amounts of THC are present in legal CBD products and because certain legal compounds produce the enzyme, the zero-tolerance policy can no longer be accurately applied in response to a positive test result.

THC Buildup from Legal Hemp Products

The first circumstance that can produce a positive result from legal CBD use is the fact that CBD products often contain a legal trace amount of THC. Hemp cannot be grown with 0% THC; that’s just not how the cannabis plant works. It is also very difficult to chemically remove all THC from CBD products in a lab. 

Therefore, if a CBD product has less than 0.3% THC, it is legal.

However, prolonged or high levels of CBD use can result in a cumulative amount of CBD in the body, which may generate a detectable amount of the enzyme even if the federal employee never sought or experienced psychoactive results.

Broad-Spectrum CBD is Not Always THC-Free

In CBD products, there are categories such as full-spectrum and broad-spectrum. Full-spectrum reports to include the full range of cannabinoids, including the legal amount of trace THC. More importantly, broad-spectrum CBD claims to have removed the THC at the cost of a few terpenes and flavonoids so that it is safer for people like federal employees and machine operators who work in zero-tolerance environments.

However, these products are not certified, and there is no guarantee that they are entirely THC-free. Large quantities or prolonged use may still contain enough trace THC content to test positive for the enzyme on a federal employee drug test.

Delta 8 and Other Legal THC Allegories

Another complication is the existence of THC molecules that are not included in the Schedule 1 classification but can produce the enzyme when processed in the body. These include THC Delta 8, THC Delta 10, and other natural and synthesized variants.

While it is still technically legal (though considered a gray area) to use psychoactive but non-classified THC allegories, they will appear on a drug test as THC positive even though they are not against federal law.

Can Federal Employees Take CBD and Not Get Fired?

The situation regarding legal CBD and no-tolerance testing has led to an unpleasant state of current affairs. By the letter of the law, federal employees should be able to take legal CBD products without concern about being fired. Hemp-derived CBD is non-psychoactive and can provide many therapeutic benefits.

The problem is that policy has not yet caught up with a law enacted 5+ years ago. THC testing is not precise enough to tell the difference between an enzyme created by trace amounts of THC over months of legal CBD, Delta 8 use, which produces the same enzyme, or rampant illegal marijuana use – and the zero-tolerance policy treats them all the same.

Right now, the policy can and often does result in the firing of federal employees who lawfully use hemp-derived CBD products and then test positive for trace amounts of THC-processing enzyme during a drug test. But this is no longer lawful decision-making on the part of federal employers. Federal Employees are held to a zero tolerance policy for THC, Agencies don’t make exceptions, at this point, for legal CBD or Delta 8 because they still contain THC. Agencies don’t discern between legal or illegal THC, if THC is in the CBD or Delta 8 that is enough to terminate a federal employee.

Is It Illegal to Fire a Federal Employee for CBD Use?

Yes. By the letter of the law, it is illegal to fire federal employees for lawful activity. This includes CBD use.

Just because a practice has been a long-standing policy doesn’t mean it is legally defensible. The law has changed. The law changed over five years ago, but federal employees are still being fired for the legal use of CBD products.

Until testing can become precise enough to differentiate between legal and illegal activity, the test itself is no longer a valid cause for adverse action against a federal employee when the THC-related enzyme is detected.

Seeking Justice or Defense for CBD Use by Federal Employees

Are you a federal employee who has used CBD or wants to use CBD but fears for your job? Do you know someone who has been fired for use of legal CBD? The Law Office of Justin Schnitzer is here to help defend your right to employment when engaging in federally legal behavior. Federal employment policy no longer aligns with federal law, and it’s time to force change through legal action when federal employees’ careers are harmed by unjustified adverse action.

The federal employment lawyers at The Law Office of Justin Schnitzer are dedicated to providing personalized, high-quality legal representation to federal employees nationwide. Contact us today or call (202) 964-4878 to schedule your free consultation and learn more about how we can help you achieve your legal goals.

Attorney Justin Schnitzer

Meet the Author:
Attorney Justin Schnitzer

Justin Schnitzer is the managing partner of The Law Office of Justin Schnitzer, and represents individual federal employees and unions in various aspects of federal employment law. His practice is primarily dedicated to federal EEOC and MSPB matters, responses to proposed disciplinary actions and investigations into potential misconduct.