In recent years, medical marijuana has increasingly gained acceptance as a pain remedy and as a remedy for many common ailments. However, one concern about medical marijuana for many employers and employees alike has been the psychoactive properties of tetrahydrocannabinol, or THC. In short, THC is what gets you high.
Enter cannabidiol, or CBD. CBD has been seen by many as a better alternative to medical marijuana products because it has the potential for similar benefits without the mind-altering effects of THC. CBD oil is a compound derived from the cannabis plant. The cannabis plant has different varieties, including hemp and marijuana. Hemp has very low or nearly non-existent amounts of the THC, while marijuana is usually associated with high amounts of THC. The distinction between hemp and marijuana is important because many CBD laws distinguish between hemp-derived CBD and marijuana-derived CBD.
On July 30, 2019, Ohio Governor DeWine signed S.B. 57 into law. Prior to the law going into effect, CBD outside of the state’s medical marijuana law was illegal. S.B. 57 effectively legalizes possession and use of hemp-derived CBD so long as it contains not more than 0.3 percent THC. It also legalizes the licensed cultivation of hemp and removes hemp-derived CBD from the state’s controlled substances list.
Ohio’s new law followed recently enacted federal CBD legislation. In 2018, the federal Agriculture Improvement Act amended the Controlled Substances Act to remove hemp-derived CBD from the list of Schedule I controlled substances. As is still the case in Ohio, marijuana-derived CBD still remains a controlled substance under federal law. On the other hand, the Food and Drug Administration (FDA) has not yet approved most CBD products because “there is very limited information about CBD, including its effects on the body.” The FDA also notes that it is still illegal to market products that add CBD to a food or label CBD as a dietary supplement, regardless of whether the CBD is hemp- or marijuana-derived.
Unlike Ohio’s medical marijuana law which gives employers maximum flexibility in addressing medical marijuana in the workplace, S.B. 57 contains none of the same protections for employers. For instance, Ohio’s medical marijuana law explicitly allows employers to continue to apply a zero tolerance drug policy to medical marijuana, to refuse to hire an individual with a medical marijuana license and to refuse accommodations to a medical marijuana user. S.B. 57 doesn’t discuss employer treatment of CBD in the workplace presumably because CBD, without the same psychoactive properties of marijuana, presents less of a risk to safety and productivity. Employers may, in some circumstances, be required to accommodate the employee’s use of CBD in the workplace.