CBD oil poses risk for failed drug tests

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INDIANAPOLIS (WTHR) — Armed with a new law that legalizes CBD oil in Indiana, thousands of Hoosiers are now taking the dietary supplement for arthritis, epilepsy, Parkinson’s Disease and other medical conditions.

But while many people report CBD oil effectively reduces or eliminates their pain, others worry it might eliminate their job.

“I stand to lose everything I’ve worked so hard for,” said Keith Krulik. “I think a lot of people and a lot of employers don’t really understand what is going on here.”

Krulik owns a small company that transports Medicaid patients to their doctor’s appointments. He contacted 13 Investigates after a recent employment drug test showed his urine tested positive for marijuana.

"I don’t use marijuana. Never have. Never!" Krulik told WTHR. "I take CBD oil for migraine headaches, and it showed up on my drug test. Now they think I’m pot head. I haven’t done anything wrong, but I’m being penalized anyway."

Keith Krulik owns a transportation company. He worries a positive drug test resulting from legal CBD oil use could cost him a major part of his business.

Krulik’s test results raise questions for thousands of CBD oil users who are subject to routine or random drug testing. It is a cautionary tale not only for those who use CBD oil, but also for employers whose mandated drug testing could detect a legal product and report it as an illegal substance.

Stunned and humiliated

After battling debilitating migraine headaches for nearly four decades, Krulik began taking CBD oil in October. He noticed an immediate impact.

"I know it sounds dramatic, but to me this thing is a wonder drug,” said Krulik, who has been able to wean from four medications down to one since taking CBD oil. "Have not had a migraine since October. Not one. I have no pain. It’s amazing."

The business owner says he was not concerned when he learned all of his employees would be required to take a drug test to maintain their contract to transport Medicaid patients. Each of the drivers agreed to a urinalysis in late March, and all of the results came back quickly -- except for one. Krulik would not receive his results for nine days. When the initial screening showed the presence of THC, Krulik’s urine was then sent for a second confirmatory test. They show he tested positive for marijuana.

“I was stunned. I was humiliated. I was angry,” he said. “I take CBD oil from hemp. It’s not marijuana. But when I spoke with the company’s medical review officer, he couldn’t care less that I was taking CBD oil. He just kept saying I must be using marijuana. How can they not understand the difference between marijuana and hemp?”

CBD oil and marijuana are different. While both come from cannabis plants, they come from different varieties of cannabis that have very different qualities. Marijuana comes from cannabis plants with short stalks that are prized for their leaves. Those leaves contain high levels of THC, a psychoactive compound that can cause users to feel “high.” CBD oil is extracted from a type of cannabis called industrial hemp that features tall stalks with strong fibers used in clothing, rope and many industrial purposes. Unlike marijuana, industrial hemp contains little or no THC and cannot create a psychoactive high.

Because most CBD oil contains only tiny amounts of THC, Indiana lawmakers overwhelmingly approved legislation to legalize CBD products earlier this year. Gov. Eric Holcomb signed the bill into law in late March, legalizing CBD oil products that contain no more than 0.3 percent THC.

Krulik told WTHR he believed the brand of CBD oil he had been taking daily falls within the state’s permissible limit. 13 Investigates sent that oil to a certified laboratory that specializes in cannabis testing to verify its THC concentration.

A certificate of analysis from PSI Labs shows the CBD oil contains .018 percent THC — well below Indiana’s legal limit for THC at roughly one-sixteenth of the maximum allowable THC.

“I’m following the law, but I guess that doesn't matter,” Krulik told WTHR. "I will lose all of my clientele and I will have to transfer my business someplace else if this isn’t figured out, and right now nobody will listen.”

Testing limitations

Confusion about CBD oil and whether it can trigger a positive reading on a drug test was obvious this winter as Indiana lawmakers debated legislation to legalize the product. Several of the bills considered in the General Assembly included provisions that would have prevented an employer from firing a worker for failing a drug test due to using CBD oil with permissible amounts of THC. Lawmakers eventually removed the wording after hearing anecdotal reports that low levels of THC would not be detected on drug tests.

But employees at drug testing labs around central Indiana told WTHR they are confused, too — unsure whether CBD oil will trigger a positive test result for marijuana.

13 Investigates hired a private lab to analyze THC levels in a dose of CBD oil. Results show the THC is well below Indiana’s legal limit but may have still triggered a positive drug test.

“I do not have any idea. I would Google it to find out,” said a worker at a local LabCorp facility.

LabCorp, the company that received Krulik’s urine sample, processes millions of employment drug tests each year. LabCorp corporate officials declined to speak with WTHR about their testing procedures and the detection of THC from CBD oil. But in an email, a LabCorp spokesman told WTHR “it is likely that the THC would not be detectable” for individuals who consume a standard recommended daily dosage of a CBD product that has extremely low levels of THC.

LabCorp did not address why Krulik’s urine sample tested positive for marijuana despite the business owner using only one teaspoon daily (the manufacturer’s recommended dosage) of CBD oil that contains miniscule amounts of THC.

Particularly disturbing to Krulik is how tests results are reported to employers. Under Indiana law, marijuana is illegal; however, tiny amounts of THC (0.3 percent or less) from CBD oil are now legally acceptable. Yet many employment drug screens report the detection of THC as “marijuana metabolite.” Employers receiving the report are left with a presumption that the source of THC detected on the drug screen is marijuana. But the reality, according to drug testing labs, is urine drug testing cannot differentiate whether THC comes from marijuana or from CBD oil.

"They do not discern the product or method by which it was ingested," wrote Don Von Hagen, LabCorp’s vice president of corporate communications.

If you are subject to drug tests, experts suggest:

  • Use CBD oil with 0% THC
  • Take lowest potency/dosage that relieves symptoms
  • Tell employer you use CBD oil before the test

Some experts say current drug screening protocols can therefore pose serious problems for those who take CBD oil.

“If you do a marijuana screen, it will come back positive if it detects any type of cannabis, and there’s almost no amount they cannot detect,” said Dr. John Bederka, a toxicology expert who has served as laboratory director of Accu-Lab Medical Testing and former toxicology head of the University of Illinois Medical Center’s Abraham Lincoln School of Medicine. “If the test is set up to look for THC acid, the test doesn't care where that THC comes from. Any amount, no matter how little, makes you a drug addict. It’s about as dumb a thing as you can imagine. There’s no way to objectively use the numbers to determine if someone is clinically impaired, but people are still subjected to the tests and being made out to be drug users.”

“Everyone went Whoa!”

An inability of employment drug tests to differentiate between marijuana and CBD oil is prompting some employers to now re-think their drug testing policies.

"The mayor and I have been talking, and I think we’re going to re-do our policy, or at least amend it in some manner in the next couple of weeks," said Fred Lewis, the city of Seymour’s clerk and treasurer. Lewis has been taking CBD oil for two months to ease his chronic arthritis pain.

Seymour city officials want to know if CBD oil will show up on drug tests. Several employees, including police officers, want to use the supplement.

"This has completely done away with that. In my case, it’s a night and day difference,” he told WTHR earlier this week, holding a bottle of CBD pills that he purchased from a nearby retailer. “I couldn’t walk to the post office seven weeks ago. Now I walk to the post office and don’t think anything about it. I'm a whole different person."

Lewis shared his story with co-workers, and he says at least four other city employees now use CBD oil, too. More want to start.

“The police chief came over and said 'You taking CBD?' I go 'Yeah,' and he goes 'A bunch of my officers want to take it,’ explained Lewis. “He was worried about the liability and if they could pass a drug test if they’re taking CBD oil because we do random drug testing.”

Knowing the potential benefits of CBD oil firsthand, Lewis wanted answers, and he wanted to help. He came up with a plan and presented it to the city’s human resources director.

“I just told her ‘I'll take a drug test. I’ll be the guinea pig, and see what happens,” said Lewis, who takes one capsule of CBD oil daily. He voluntarily took a urinalysis test last week and quickly got the results: positive for marijuana.

Indiana’s new law allows anyone to buy and use CBD products with less than 0.3% THC.

"Of course everyone went "Whoa!'" Lewis told 13 Investigates. “I’ve never taken marijuana in my life, wouldn't even know it if I saw it."

Following standard procedure for a positive drug screen, the longtime city clerk’s urine was tested a second time. Those results were negative, showing he was not taking any illegal drugs. The differing results have left city officials with questions.

“What are we supposed to do? A lot of people are hearing about [CBD oil] and interested in it, and I don’t think it causes any problems,” Lewis said. “It’s legal, but we still need to find out if other people can use it without getting in trouble. It’s something we’re going to talk about with the [city] council.”

Drug testing “chaos”

Kevin Betz, an Indianapolis attorney who specializes in employment law, says employers should not be afraid of CBD oil.

"At some point, adult reasoning and common sense come into play. If we’re talking about trace levels of THC that have been declared by the state legislature and the governor as legal, it’s hard to enforce a workplace policy against a product when it doesn't alter the physical or mental status of an individual to perform the functions of their job," Betz said.

He believes employers should use caution before taking employment action against workers who use CBD oil. Betz says some of those employees may be protected under the Americans With Disabilities Act. The federal law prohibits large employers from discriminating against employees who take legal medications to treat a disability.

"If this is solving an individual's disability, they become a more productive employee. Why would you want to fire somebody for being productive," Betz asked. "My advice is: if you know you’re having a drug test and you’re using CBD oil, I would disclose that so this doesn't come back as a surprise to the supervisor. A disclosure is necessary to be protected by the act."

The US Food and Drug Administration does not currently recognize CBD oil as a medication. (It is reviewing a CBD-oil type of drug for approval). And ADA rules have been challenged when it comes to products derived from cannabis because the plant is still considered a Schedule I drug under federal law.

CBD products are typically derived from industrial hemp plants, which contain very little THC.

When an employee fails a drug test, the case is normally reviewed by a medical review officer (MRO) who then makes an employment recommendation to that individual's employer. Those doctors are supposed to ask employees if there is an alternative explanation for a positive drug test, but when the test involves marijuana, medical review officers often have little discretion.

"MRO’s generally don’t wade into whether there is an alternative medical explanation for that. They simply report back to the employer that there is a positive test. They leave it up to the employer to determine if there is a violation of the employer’s policy,” said Barry Sample, senior director of science and technology at Quest Diagnostics. As one of the nation’s largest drug testing laboratories, Quest Diagnostics performed more than 10 million workforce drug tests in 2017.

Dr. Leon Gussow, a medical toxicologist in Chicago, echoed Sample’s comments.

"The MRO is bound to follow the rules, and if the test looks legitimate, they have to call it a true positive,” he said. “Employers really aren’t interested in where the THC comes from, and that results in some patients getting screwed, in my opinion. Right now, marijuana drug testing for employment is in transition and in chaos. It’s something someone is going to have to figure out.”

Sample believes employers may now need to review their drug testing policies to factor in the growing popularity of CBD oil, which could produce a positive marijuana reading for employees who do not smoke marijuana.

"There’s always that risk. It depends on the concentration, how it’s used and how much is used,” Sample said. "Employers also need to be aware there could be people who are smoking marijuana and now want a 'get out of jail free card' by claiming they are using CBD oil. It’s a complex issue."

Until that issue is resolved, it could discourage some consumers from using CBD oil. It could cost others their livelihood.

"I just don’t want this to happen to other people," Krulik told WTHR. "I worry about people getting fired for doing nothing wrong, and I hate to see that happen."

Tips for CBD oil users

Toxicologists say taking CBD oil with low levels of THC likely will not show up on an employment drug test. But if you take CBD oil and are subject to routine or random drug screens, experts suggest you take these steps to help avoid problems:

  • Choose CBD oil that is clearly marked ZERO THC. (Some companies offer CBD products that have a small amount of THC and others that contain no THC.)
  • Use the lowest potency and dosage possible to achieve your desired results. Higher doses and more potent CBD oil may increase the risk of a positive reading on a drug test.
  • Tell your employer you are taking CBD oil before the test results come back to avoid any possible surprises.
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