Last updated: November 23, 2020
A majority of the United States allows legal use of medical marijuana. The medical conditions that allow its use differ from state to state. This is posing a problem for employers across the board. Including how they handle positive drug test results. Verifying a medical marijuana authorization needs to be part of your drug-free policy if it’s not already.
Failing to do so, could lead to legal issues down the road.
In some states, employees testing positive due to medical marijuana use can’t be fired. Both Nevada and New York City plan to ban employers from including marijuana on pre-employment drug tests entirely. The laws go into effect in 2020. Thankfully, both left carve-outs to continue testing for occupations where safety is an issue.
Furthermore, if the STATES Act passes, marijuana’s Schedule 1 classification will be removed in states that have legalized marijuana. If so, the DOT will be required to remove marijuana from its drug test at the federal level. A safety carve-out amendment can solve that issue.
Rules and regulations
Employers of the safety-sensitive workforce use a federally licensed Medical Review Officer (MRO). Currently, the DOT doesn’t consider state-authorized medical marijuana use to be a valid reason for a positive test result.
If a safety-sensitive employee tests positive for marijuana on a drug test, the laboratory notifies the Medical Review Officer (MRO). The MRO reviews the report and contacts the employee to discuss the results of the test. The employee supplies any medical evidence that contributes to the positive result.
Marijuana is classed as an illegal drug with no medical purpose. Therefore, MRO’s commonly disregarded medical marijuana authorization at the state level as a valid excuse to combat a positive drug test result.
However, the MRO community recognizes the growing number of positive test results and the way it’s impacting employers. Some are choosing to reconsider their approach to the situation.
DOT-regulated employers should check with their TPA (Third Party Service Associate) to see whether or not they accept state-issued medical marijuana authorization as a valid excuse for testing positive on a drug test.
What if they don’t
If the MRO doesn’t include verification of state-issued medical marijuana authorizations in their policy, employers shoulder greater responsibility.
The burden of proof to determine that the person is legitimately a medical marijuana patient rests with the test subject or the employer.
- Ask the test subject to produce a state-issued medical marijuana card.
- Require the test subject to produce a copy of the physician’s Written Certification submitted to the state.
- Contact the physician that issued the authorization to verify it’s validity.
Many state laws are being argued in state court between employers and employees. Some states have employer protection for a Drug-Free Workplace, while others have sided with the employees’ right to use medical marijuana. As an employer, you have to decide your position on the matter and have a well-written policy that communicates your position.
Know the law
Employers that don’t utilize an MRO need to be aware of the existing laws in their state pertaining to employee drug tests. A positive result on a pre-employment test almost always allows the employer to withdraw the offer. Marijuana, however, may be an exception to the rule.
That will certainly be the case next year in Nevada and NYC.
Conversely, other states handle testing hired employees differently than pre-employment tests. For example, Vermont and Minnesota block an employer from terminating someone the first time they fail a drug test if the employee agrees to complete a rehabilitation program.
Other states require employers to relay all positive drug test results to test subjects within a certain amount of time. Moreover, some states require employers to provide the person with time to contest the result and to take a confirmation test.
Employers, look over your drug-free workplace policies. Make any necessary changes to keep you abreast of marijuana legalization within your state. Hiring a TPA that specializes in marijuana legalization ensures that you comply.
Many employers feel they’re on shaky ground in regard to marijuana legalization and employee drug testing. Drug-free policies are tricky enough to maneuver in the rapidly changing world of marijuana legalization, but they pose an even greater problem for employers that operate in multiple states. Creating a uniform company drug testing policy seems impossible.
Not to mention the driver’s responsibility to adhere to drug-free policies could go right out the window if passing through a state that legalizes recreational use.
Until we know if the STATES Act passes, employers reserve the right to keep marijuana on the test panel. They can stand with the Federal Government even if marijuana is legal at the state level.
For the moment, marijuana remains an illicit drug at the national level. Even in states that legalized the medical use of the drug, employers have a right to protest.
The answer to the question
Ultimately, it depends on whether or not you’re regulated by the DOT whether or not MROs review medical marijuana authorizations. Moreover, some employers of the general workforce hire MROs as well. If not, drug-free policies should include the steps taken when employees test positive for marijuana but have medical authorization at the state level.
An employer who is concerned about where marijuana legalization is leading their company in regard to drug testing employees needs to speak up. Contact your state and federal officials and share your thoughts.
Alcohol in the workplace is strictly forbidden even though its a legal drug. Using medical marijuana or CBD products containing high levels of THC and testing positive for marijuana is a serious issue.
Marijuana use impairs thinking and motor skills. Employees that use marijuana for medical purposes aren’t immune to its effects. We have a responsibility to all of our employees to keep them safe at work.
Many employers feel that states are putting the marijuana cart before the horse.
Until there is a test for current impairment, even if someone has proof to back up a state-authorized medical marijuana claim they can’t prove they weren’t impaired at the time of the test. Of course, neither can the employer.
For the moment, it’s a catch-22.
Studies show that breath detection coincides with the amount of time someone is affected by the drug. Several companies are in the process of creating a marijuana breathalyzer. It’s hopeful that they will hit the market soon.
It’s going to sell like hotcakes.
In the meantime, consider hiring a TPA who specializes in state marijuana laws and have them review your drug-free policies. They will advise you on any necessary changes that need to be made.