Employers and Delta – 8 THC

Marijuana in the workplace is an evolving target that is difficult for employers to navigate, as seen here in a previous post.  A zero tolerance policy is perfectly acceptable, and required for USDOT safety positions, etc., but the landscape is ever shifting.

Enter Hemp, which the 2018 Farm Bill legalized.  Notwithstanding the DEA’s reluctance to give up turf, hemp is legal from coast to coast in states with a system, and highly regulated from state to state.  To be clear, hemp is not marijuana, although both are cannabis.  The basic difference is that marijuana is hybridized, grown, and processed for varying psychoactive effects (Delta-9 THC ), while hemp is hybridized, grown and processed for seed, fiber, and oil (think CBD sold at Walgreens) that does not have a psychoactive effect.  That is, hemp ingestion does not result in the “high.”

It is also true that the cannabinoid oil contains over 100 separate compounds that are only now beginning to be isolated and explored.  These include the Delta-9 THC that results in the high from marijuana.  However, given the 2018 Farm Bill, as long as the oil comes from legally produced hemp with a traditional Delta-9 THC content of less than .03%, it is legal.  Therefore, anything subsequently derived from that legal hemp oil is legal.  And presto, like magic we now have the proliferation of Delta-8 THC.

Employers are predictably confused and asking many questions.  Delta-8 THC, unlike its much more powerful cousin Delta-9 THC, is currently a legal substance that is being advertised as the “avoid the dispensary” option to traditional marijuana products.  Reports are that Delta-8 THC does have a psychoactive impact, albeit a far weaker impact.  See Dante Jordan’s self-evaluation for Leafly here.

Employers can obviously ban workers from being drunk and high on the job.  They can also ban the use of marijuana based Delta-9 THC altogether, because it is federally illegal and a Tier 1 controlled substance.  Can they also completely ban the use of a federally legal Delta-8 THC product used by workers outside of work?  Can they completely ban the use of alcohol outside of work?  And it gets trickier because the employer can test for alcohol to see if an employee is impaired in real time.  This is not the case with THC of any kind.  With THC, the employer must rely on the subjective observations of a co-worker or supervisor, and testing that can only determine whether a person has used a THC product in the past month or so.

When considering adverse employment actions based upon subjective observations and no empirical proof, employers predictable become nervous about potential lawsuits, grievances, low morale and disgruntled workers.  And remember, Delta-8 THC is one of over 100 compounds.  Some are likely throwaways, but some will hit the market.

Employers need to plan and think through hemp and marijuana products in the workplace.  The ability to hire and retain in non-safety positions is causing some employers to take an approach akin to alcohol. Some are taking a hard line.  Due to the fact that over two-thirds of Americans have access to some form of legal marijuana, and almost all have access to hemp and Delta-8 products, what employers cannot do is ignore the issues.