Do your workplace prohibited substances (Smoking or Drug) policies make distinctions between legal and illegal drugs? Do you use “cannabis,” “marijuana,” and “hemp” interchangeably? What about “vaping?” It’s important to understand the vernacular, to make sure your policies say (and, prohibit) what you think they say!

• Vaping: Vaping is considered the inhaling of vaporized substance. E-cigarettes, for example, are vaporized nicotine. However, a person can also inhale vaporized liquid containing CBD oil, thus vaping is a broader term that doesn’t just mean e-cigarettes.
  1. As related to a Smoking Policy, it might be beneficial to include vaping as a broader term in your definition of smoking, and to include use of e-cigarettes as one example of vaping.
  2. However, vaping involving CBD products also implicates a Drug Policy, so an employer would want to address it there as well.

• Cannabis: Definitions and Distinctions
  1.  Cannabis contains several different types of chemical compounds from the cannabinoid family. CBD is one, and THC is another. CBD is short for “cannabidiol”- and is the non-psychoactive ingredient in the cannabis plant.  THC, or tetrahydrocannabidinol, is the psychoactive ingredient in the cannabis plant.
  2. According to the FDA:
     1. Hemp is defined as “cannabis that contains no more than 0.3% TCH.” Hemp is legal under the Agriculture Improvement Act of 2018 (the “Farm Bill”).
     2. Marijuana: Cannabis that contains levels of THC over 0.3% THC. This remains a schedule I drug under federal law.
  3. Therefore, if a CBD product comes from a hemp plant- it is legal under federal law. If a CBD product comes from a marijuana plant- it is still illegal under federal law. But, both could still contain THC.
  4. The problem is unless the CBD products come from a state that requires cannabis products to be tested for potency and purity – a consumer might never really know where it derived from and/or whether it did contain THC.

All that said, with those distinctions/vernacular in mind, even if it isn’t necessarily illegal under federal law: Michigan employers can determine that any cannabis (including any cannabis-derived compounds, regardless of its form) is a prohibited substance at their workplace.

If you have any questions about how best to write your organization’s smoking or drug policies, to contact the author or your Miller Johnson Employment & Labor attorney.