Author Archives: Sheri Lash

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

It is important for all employers and safety-sensitive employees to know:

1. The Department of Transportation requires testing for marijuana and not CBD.

2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.

3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, the Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

On Dec 1. 2019 Grand Rapids, MI amended the “Human Rights” Ordinance affecting Discriminatory Housing and Employment Practices in regards to CRA’s (Consumer Reporting Agency) and background screenings. Although Michigan banned “Ban the Box”, the ordinance gets around this as it is characterized as a “discrimination law”.

In cases dealing with housing practices, an outright ban on prospective tenants with a criminal background is prohibited. History of a criminal conviction may be considered in
housing decisions, although arrest with no conviction may not be considered.

Landlords must carefully consider, on a case-by-case basis:
1. The nature and severity of the crime and;
2. The age of the individual at the time of the crime
3. Whether there have been repeated offenses and;
4. Whether the individual maintained a good tenant history before or after the conviction
5. Evidence of rehabilitation efforts and;
6. Whether the crime for which the individual was convicted may pose a demonstrable risk to the health, safety or welfare of other residents or persons (which would include manufacturing or distributing
illegal drugs) or to property.

In cases dealing with employment practices, the ordinance states no employer shall discriminate against a current or prospective employee with respect to hiring, tenure, terms, conditions, or privileges
of employment, or any matter directly or indirectly related to employment, unless
such action is based on a bona fide occupational qualification.

Bona fide occupational qualifications shall include:
1. Safety-Any decision based upon the reasonable and well-substantiated
belief that an individual’s physical or mental health poses a serious threat to
the health, safety, and welfare of the individual or other employees or
customers
2. Conviction Record-History of a criminal conviction may be considered in
employment decisions, although arrest with no conviction may not be
considered. An outright ban on prospective employees with a criminal
background is prohibited.

Employers must carefully consider, on a case-by-case basis:
a. The nature and severity of the crime and;
b. The age of the individual at the time of the crime
c. Whether there have been repeated offenses and;
d. Whether the individual maintained a good employment history before or after the
conviction
e Evidence of rehabilitation efforts and;
f. Whether the crime for which the individual was convicted may pose a demonstrable risk to the health,
safety or welfare of other employees or persons or to property.

Employers, property owners/management along with CRA’s need to adjust their policies and practices according to this ordinance.