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Declaring a Drug Test Positive: Who Has Final Say on Medical Marijuana?

(Fall 2017 [updated Fall 2019] ) Medical Review Officers (MROs) offer important oversight in the drug testing process by making the final determining if a drug test is officially ruled positive or negative. The MRO’s role is to verify that an individual has a legal explanation, i.e., a prescription, for having a substance in his/her system at the level it shows.

All federally mandated drug tests (e.g., under the Department of Transportation regulations) – long acknowledged for their defensibility and employee privacy protections – require the involvement of an MRO. These federal testing protocols are considered best practice for drug testing and include these steps:

  1. An employee provides a urine specimen at a controlled collection site using a chain-of-custody form.
  2. The specimen is shipped, under specific protocols, to a federally certified laboratory for testing. There, a portion of the specimen is put through a scientific analysis that is said to be 92-98% accurate.
  3. If the specimen is positive at this initial level of analysis, it undergoes a confirmatory testing process called gas chromatography/mass spectrometry (GC/MS) to look for the chemical signature of the drugs designated in the test. If the drug or its metabolites are present at or above the pre-announced level, then the specimen is ruled scientifically positive.
  4. However, before the employer or the employee know the scientific results, one final check is done. An MRO reaches out to the employee to discern whether there is a verifiable reason that the drug in question is present in the employee’s system at that level. The test will be ruled “negative” if the employee has a verifiable, legitimate reason.

When it comes to drug testing for marijuana, the proliferation (and variance) of medical marijuana laws have complicated the picture for employers. While still illegal under federal law, state and even local laws regarding medical marijuana can cause confusion for what could be argued as a legitimate reason for having marijuana in one’s system. Of course, for a federally required test, the MRO’s ruling for marijuana is clear – a positive test is a positive ruling and thereby a violation.

However, when it comes to a non-mandated test, in a state with legalized medical marijuana, employers must be sure they have detailed, in writing, their position and protocols regarding their employees’ medical use of marijuana. Doing so gives fair notice to employees and supervisors and lets them know what they should expect from their company when it comes to drug testing and consequences.

If a non-mandated workplace wants to allow “passes” on a marijuana test for its employees with a medical marijuana recommendation, the employer has two options. The company could drop marijuana from the panel of drugs to be tested. Or, the employer could maintain marijuana testing and, in the case of a positive marijuana result, follow the actions declared in their company’s policy for responding to an employee claim for using marijuana because of a medical recommendation.

MROs are not willing to open themselves up to potential liability involving medical marijuana. Because of the great variations between state, federal and local regulations, it can be an involved process for an MRO (who may serve a national clientele) to accurately verify the credibility of a medical marijuana recommendation claim. Additionally, such activity is not supported by the professional standards and credentialing bodies of the MRO industry.

Bottom line, for non-mandated testing, employers should adopt a 3-step protocol, two steps of which mirror federal testing requirements: testing for marijuana and investing in an MRO review. Accompanying these steps should be additional policy and procedural directives that address the company’s position on marijuana (whether the employer is accommodating the use of medical marijuana or not).

  1. Maintain marijuana in the testing panel. From a safety perspective, this is a responsible action. Drug tests positive for marijuana are increasing, and we know using marijuana can compromise safety. To limit and contain exposure, employers need to continue testing for marijuana to show vigilance in their efforts to provide a safe workplace, a general duty under OSHA.
  2. Involve an MRO in the test review process. This limits the information an employer receives directly from the employee. Following a positive test, without a confidential exchange between the employee and the MRO, the test will be ruled positive. Unfortunately, when employees are told they have a positive test, they often shout, “Foul!” and blurt out the medical condition being treated with the drug. This can put the employer at risk for a variety of complications – issues of confidentiality, discrimination and responsibilities for accommodation among them – because they now know of a medical condition that the employer may not have a business-related reason to know. Hearing this information and discriminating its business-importance is best done by a medical professional, the MRO.
  3. Specific guidelines articulated, in writing, about actions that will result following an MRO declaration of a positive marijuana test. Non-mandated employers who are willing to accept a medical marijuana recommendation and excuse the positive test need to commit, in writing, steps to be taken after the positive test result. These guidelines will likely denote marijuana-prohibition for any safety-sensitive positions or activities in the company. For other employee roles, companies should include guidelines around receiving and confidentially filing a copy of the patient’s verification card along with documentation around these questions:
  • Is it necessary for the employee to have marijuana measurably in his/her system during office hours?
  • Have other alternatives been considered, i.e., can the company work with the employee and his/her physician to find alternative (federally legal) treatments?
  • Does the extent of the illness or disability require other accommodations, such as reduced or altered duties or a reduction in employment status?
  • What is the company’s legal responsibility according to their state’s marijuana laws?
  • How will a request to accommodate a medical marijuana recommendation affect other employees?
  • What are the implications if the company refuses to accommodate a medical marijuana recommendation?

One last note: It is important for businesses to know what their state and local laws say regarding marijuana (medical and recreational) and non-mandated drug tests. In locales where businesses have legal latitude about the corrective actions they can take for a positive test, such as Ohio, it is imperative to think through all the ramifications. Give fair notice, preferably in writing, and be able to verify that employees received the company’s position, so they know the expectations and consequences. Then consistently follow the company’s established procedures.

This is a new and dynamically changing area of law and of operating a drug-free workplace program. Employers will benefit from gaining insights and support from their legal counsel and strengthen their position in case of a potential legal challenge if they follow best practices – utilizing an MRO and standardizing their position and protocols regarding marijuana.

A responsible place to begin is, “at the beginning.” Not familiar with all the surrounding issues of medical marijuana and the workplace? Our Medical Marijuana Operational Considerations Toolkit is a great place to start.

DISCLAIMER: This publication is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the publication are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Declaring a Drug Test Positive: Who Has Final Say on Medical Marijuana? (Fall 2017 [updated Fall 2019] ) Medical Review Officers (MROs) offer important oversight in the drug testing process by

Marijuana and Employment Drug Testing

Marijuana is legal for medical and recreational use in some U.S. states and territories and in the District of Columbia. However, testing positive for it when an employer drug tests you can be an issue, whether you are a job applicant or an employee.

The legal use of marijuana medically or recreationally varies from state to state. However, it is still considered illegal under federal law. In 36 states, the District of Columbia, and the territories of Guam, Puerto Rico, and the U.S. Virgin Islands, it is legal for those dealing with epilepsy or certain other illnesses to legally use marijuana for medical reasons.   To become a legal medical marijuana user, you need a recommendation or prescription from a doctor who is legally appointed by the state to prescribe medical marijuana.

In 15 states (Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, and Washington), the District of Columbia, and Guam, adults can legally use cannabis recreationally.  

These evolving laws regarding marijuana use create challenges for lawmakers and employers who test applicants and employees for drug use.

Federal and State Drug Testing Laws

Under federal law, cannabis use is illegal, and employers in industries that are heavily regulated by the federal government screen their employees randomly and include drug testing as part of their hiring process.  

For non-federally regulated employers, federal law doesn’t require drug testing. However, there are state and local governments that enforce laws regulating drug testing.  

Employers have the legal right to maintain a drug- and alcohol-free work environment and are allowed to test applicants and employees as long as the employer clearly informs those applicants and employees of the company’s drug-testing policies, including pre-employment screening and random drug testing. In some cases, an offer of employment may be conditional pending the results of a drug test.  

These policies may be stated in the job description, but most often will be stated in a clearly written agreement within the application or employee handbook, which applicants and employees are required to agree to and sign in order to be hired or maintain employment. Some employers have a company policy that directly addresses marijuana use, while others do not.

When Companies Drug Test

How many companies conduct drug testing for marijuana use? SimplyHired surveyed over 700 hiring managers, asking whether the company conducts drug tests and what were their personal perceptions of employees who use marijuana:  

  • 55% of hiring managers report not performing marijuana drug tests on current employees, and nearly 40% of those who do say they do so less than in the past
  • In states where marijuana is fully legal, 58% of hiring managers say their company has a marijuana use policy
  • With companies that drug test, 50% do so after the job offer and 31% drug test after the interview

Most companies surveyed were accepting of marijuana use outside of work—only 17.7% would fire someone. However, 75% would most likely fire someone for using marijuana at work.

One important takeaway from the survey is that 68% of hiring managers said their company would be okay with marijuana use as long as they didn’t know about it. So, it’s always a good idea to keep what you do on your own time private.

Marijuana Drug Screening Issues

Drug screening for marijuana has become a debated topic in states where medical and/or recreational use is legal. The biggest difference between alcohol and cannabis is how they are detected through testing. Alcohol does not linger in the bloodstream like marijuana does.

Someone can fail a marijuana drug test weeks after using marijuana because the active ingredient, THC, takes a long time to leave the bloodstream. A positive test does not mean the person is impaired at that moment. Instead, it just shows that they used marijuana within the last few weeks or so.  

On the other hand, there are on-the-spot tests like the breathalyzer to determine the alcohol level and subsequent impairment of an individual at that moment. This enables lawmakers to create laws regarding the consequences of having more than the legal limit of alcohol in your system.

The technology to test marijuana levels with such accuracy has yet to be created. Without the ability to do accurate on-the-spot testing, it is challenging to determine what a legal level (the lowest level that does not cause impairment) of THC would be. Therefore, any trace can be considered exceeding the legal limit.

Workplace Discrimination and Marijuana

When someone holding a medical marijuana card is fired from his or her job because of a positive drug test, he or she could be considered a victim of workplace discrimination. Without the ability to test for actual levels of THC at the specific time the test is being performed, a person who tests positive for THC may not be actively high.

Laws to reduce this type of workplace discrimination are being created to protect those using medical marijuana under the state’s medical marijuana program.

Some employers are required to test employees under federal law or highly regulated safety laws for jobs like truck drivers or pilots where there is a legitimate basis for firing an employee who fails a random drug test.  

If an employer does not have to adhere to federal laws or safety regulations, the employer must carefully determine and provide reasons for firing a medical marijuana user who fails a drug test.  

Some states, including Nevada and New York, for example, consider those who use cannabis for medical reasons as being legally disabled and have created laws taking this type of disability into consideration. These laws require employers to ”reasonably accommodate” the medical needs of an employee who is a certified patient holding a legal medical marijuana card.  

Also in Nevada, starting in 2020, employers cannot refuse to hire a job applicant (with some exceptions) for failing a marijuana screening test, making it the first state to pass such a law.  

In states where medical marijuana users are considered disabled, medical marijuana users cannot be legally fired because of a positive drug test. However, this only applies if the marijuana use does not keep the employee from doing his or her job, and does not affect the safety of the employee, other employees, the public, or anyone else in the workplace.

If you are a medical marijuana cardholder or someone who enjoys legalized recreational marijuana, research your state, your employer’s, or your future employer’s drug testing policy. You shouldn’t assume that, because you are exercising your legal right to use cannabis outside of the workplace, you are immune to the repercussions your employer may impose on you as the result of a drug test that comes back positive for THC.

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.

Marijuana and employee and applicant drug testing, laws and regulations, medical and recreational use screening, and workplace discrimination issues.