Amidst a proliferation of hemp-based products on the market, there’s a new player in the game: tetrahydrocannabinol (THC) Delta-8, which causes a “high” similar to the federally banned cannabis compound known as THC Delta-9.
Delta-8 is legal in many areas due to the 2018 Farm Bill, which changed the way the United States views hemp and cannabis products. Because the language in the Farm Bill allows for the legal consumption of hemp-derived products, it’s important for home health providers to understand what this new, readily available compound means for their workforce, patients and overall business operations.
A High by Any Other Name
Let’s start with breaking down the difference between Delta-9, Delta-8 and cannabidiol (CBD). It’s important to note that there are more than 160 cannabinoids in a cannabis plant, but these three are the most frequently seen derivatives in the market.
Delta-9 THC—that is, the part that gives marijuana its “high”—determines whether a cannabis plant and its product are federally permitted. Below .3% is legally defined as hemp under the Controlled Substances Act, said Richard Cheng, a lawyer and member at Weaver Johnston Nelson, PLLC.
Delta-8 is “a minor compound that occurs naturally in trace amounts,” in the plant, Cheng said. About 35% of Cheng’s legal practice focuses on legal issues surrounding the cannabis industry, and he regularly advises on a myriad of cannabis-related issues. He said manufacturers use a solvent to perform a process—called isomerization—to synthetically develop Delta-8 THC from CBD and boost the amounts available in over-the-counter products to much higher levels.
And while CBD is not intoxicating, Delta-8 is different.
“Delta-8 is similar to THC, but it has a lower affinity for the cannabinoid receptor type 1 than THC,” Cheng said. “That means Delta-8 has both intoxicating and therapeutic effects similar to Delta-9, but to a weaker extent.”
But that can cause problems for Delta-8 users—and their employers.
The Drug Enforcement Agency (DEA), issued an interim final rule in August that declared any synthetically derived THC, including Delta-8, to be a Schedule 1 controlled substance. And while the 2018 Farm Bill allows derivatives, extracts, cannabinoids, isomers, etc. from cannabis plants with Delta-9 concentrations of not more than 0.3%—and an argument can be made that Delta-8 meets this definition—the legislative intent behind the 2018 Farm Bill does not allow people to synthetically develop a natural compound that causes a high. Cheng added that whether the final rule is enacted comes down to interpretation of the Farm Bill, any future guidance issued by Congress and case law developed through litigation, with the argument that “statute trumps regulations by the DEA,” he said.
In September, the Food & Drug Administration (FDA) issued a warning for Delta-8 products following more than 100 hospitalizations of consumers, according to a report from Hemp Industry Daily. The FDA warning included a note about “potentially harmful by-products” of the isomerization process used with Delta-8.
There are also a hodgepodge of state laws and regulations surrounding cannabinoids; some states follow federal law and regulation, while others have either decriminalized or legalized the plant and its various compounds. As of August, 18 states have expressly banned or restricted Delta-8 in some way. The state of Michigan has opted to regulate the compound in the same way it regulates medical marijuana.
“Know that the legality of Delta-8 is pretty murky,” said Dr. Alex Capano, a doctor of nursing practice and chief science officer for Ananda Health and Ananda Professional, a Kentucky-based manufacturer of hemp and CBD products. “It depends on your state law. It’s possible, and I consider it likely, that federal regulators will issue new laws to restrict the sale of Delta-8 in the future.”
Hiring & Firing
The homecare industry is facing a major workforce shortage, compounded by the COVID-19 pandemic and recent vaccine mandates. Staffers are burnt out and looking for ways to cope—and that may include seeking relief in cannabis products.
Because Delta-8 can induce a high, and because users will test positive for THC in a hair, saliva or urine test, home health providers may struggle with whether and how to restrict use of the legal compound.
“It is getting more difficult for employers to administer drug-free workplace policies when many states have legalized the use of marijuana and other THC derivatives,” said Amanda McCollum, a consultant for human capital management at Adams Keegan. “That said, employers certainly have the right to remain a drug-free workplace and set the expectation that employees can show zero sign of impairment at work.”
McCollum cited the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, which prohibits employers from taking adverse employment actions (such as refusal to hire, discharge or even discipline) against employees because of the presence of cannabis in their saliva or urine samples.
The act did recognize an employer’s right to maintain a drug- and alcohol-free workplace, however.
New York also passed a law that prohibits employers from testing for THC, but that law includes exemptions for teachers, day care workers and “those who provide supervision or care of patients in a medical, nursing home, or group care facility; and any job that has the potential to significantly impact the health and safety of employees or members of the public,” McCollum said, which would cover homecare agencies.
McCollum has noticed an uptick in employers moving away from random drug screenings, a process she said could help with retention. But pre-hiring tests will likely remain in place.
“I think there is an expectation in most professional industries, including homecare, that employees should be able to pass a pre-employment drug test,” she said. Letting an applicant know of this requirement early in the interview process not only gives them time to prepare, but also to disclose any prescribed medical marijuana use, she said.
Compliant Employee Practices
Homecare providers face numerous regulations and compliance issues each day. One of those is the American with Disabilities Act (ADA), which allows for the prescribing of drugs to manage stress, post-traumatic stress disorder, depression and other mental illnesses. These must be accommodated under the ADA.
While 18 states have legalized the use of medical marijuana for these and other conditions, some of those states carve out exemptions for certain industries like health care and transportation.
Delta-8 may be a different story.
“It becomes a less compelling argument for the employee to say that they have a right to take this,” because doctors aren’t prescribing or recommending the product, said Cheng. But he added that if an employee files an ADA complaint, the Equal Employer Opportunity Commission and/or the state’s workers’ civil rights office may look into to the process to see if a “good
faith effort” was made in accommodating the employee.
Providers are also subject to payer regulations that require them to provide safe care in a reasonable manner; the usage of Delta-8, or even Delta-9 where it’s legal, on the job can be constituted as impairment that inhibits an employee’s performance, leading to patient safety concerns.
“Think about it like alcohol,” Cheng said. “You can drink it, just not on the job.”
McCollum agreed, sharing a story about a provider who had been approached by several people about an employee smelling of marijuana while in the workplace. The employer was worried that the smell did not constitute “reasonable suspicion” for drug testing.
“Even if an employee was not stumbling around an office, there would be legitimate reason for concern if they had the strong scent of alcohol while on the job,” said McCollum. “The same logic applies to the smell of marijuana. Although it may be legal for the employee to use marijuana products before they are on the clock, it is still reasonable for an employer to respond to evidence of use that could impact the employee while they are working. If behavior, or even a smell, points to usage, employers are within their right to question it and address it.”
Cheng encouraged providers to create a “very specific policy” on this issue.
“It’s not a one-page policy describing how you manage drug testing. There must be a very fair, very thorough process. And that process [and policy] has to be understood by anyone who may come to work for you,” Cheng said. He said companies should have a compliance liaison who handles training for both front-line staff and upper management.
A compliant drug policy can also help with multi-state providers, McCollum said, but providers whose services traverse state lines should proceed with caution.
“Although employers certainly have the right to have different policies based on different state or local laws (and they may be forced to), from an administrative approach it is simpler to have a broad drug screening policy that is standard enough to work in all states,” she said.
Delta-8, like Delta-9, has many possible applications in a homecare setting. It can be used for nausea, increasing appetite, managing pain or improving sleep.
“It can be a reasonable alternative for Delta-9 THC in states where its better-known counterpart is illegal, or for people who are particularly sensitive to Delta-9,” said Capano, but it’s best to approach the compound with caution and start with a low dose.
Capano said that if clients are interested in Delta-8, they need to know that it’s intoxicating.
“Understanding this is critical to public health, so that individuals do not operate a vehicle or perform functions while intoxicated that could put themselves or others at risk,” Capano said. She does not recommend the compound for children, adolescents, pregnant women or other vulnerable populations “unless the health care team has carefully weighed the risks and benefits.”
Cheng said that homecare agencies should be cautious about taking an active role in a patient consuming the compound, particularly with active administration of the product. Knowing your state regulations is key, he said.
“There’s really three components of cannabis in health care settings that I usually always warn health care providers about, and that’s storage, consumption and administration,” said Cheng.
Providers should also understand there are risks associated with their Medicare and Medicaid contracts and state licensing if the agency decided to let caregivers help administer the drug, so checking with state and federal regulations is critical, Cheng added.
The issues surrounding Delta-8 are complicated, and are only going to get more so as more states and the federal government make decisions about cannabis- and hemp-derived compounds. For homecare providers, creating a solid policy around not just Delta-8, but any drug consumption, is the first step to proactively managing worker and client needs.