Updating Drug Screen Protocols in Light of New Marijuana Laws

Need advice for revisiting drug testing policy in the era of legalization?

• By Angela Robinson
• Apr 30, 2020

As cannabis laws change in the US and more states legalize recreational marijuana use, an increasing number of employers are asking, should we change the way we drug test? Some companies are questioning whether or not they should continue to drug screen employees at all.

It’s a complicated question, and the answer may vary from industry to industry, employer to employer and even position to position. Ideally, these conversations should be held between corporate management, human resources, compliance officers and employment lawyers.

While medical professionals can give opinions and information, they are in no position to decide the best course for outside companies. However, the expertise of occupational medicine specialists can help guide these policy changes. The below article contains pertinent recommendations from the occupational medical clinical perspective.

Federal Drug Testing

At present, the Department of Transportation (DOT) does not allow¹ for the use of medical marijuana by employees in safety sensitive positions subject to federal testing guidelines. Per regulations, Medical Review Officers (MROs) must not mark a drug test as negative solely because the donor possesses a medical marijuana card.

Companies with employees who fall under federal testing requirements, such as truck drivers (FMCSA) or bus drivers (FTA), must adhere to these guidelines. Companies that willingly choose to mirror their policies to DOT can make it known that they follow federal guidelines.

Non-Federal Drug Testing

Non-DOT drug testing is not federally regulated, so it allows employers more freedom. Thus, the substances tested and reasons for test are at the discretion of the company. While there is no official federal standard for non-DOT tests, it is worth noting that businesses are still subject to employment laws and should act accordingly. If a business is a branch of a larger corporation, a manager should clear any proposed changes to the drug policy with headquarters. Independent business owners may want to consult with a professional before producing or updating their procedures.

It is advisable for a company to create and maintain a clear drug and alcohol policy.² Some helpful areas to consider are: the substances tested (and whether different reasons for tests require different panels), reason for a test and which employees will be tested. Above all, it is vital to adhere to the drug and alcohol policy consistently, as deviations from the policy could potentially result in legal issues.

Medical Marijuana

As previously mentioned, medical marijuana use is not allowed under DOT standards. However, medical marijuana and non-DOT tests are a more complicated matter. While several states have legalized recreational marijuana use, it is still illegal on a federal level. As such, in most states employers currently can (but are not required to) choose to disqualify³ an applicant pursuant to a positive drug test. However, cannabis laws are changing rapidly, so employers should stay current on new regulations.

Another point to consider is the verification of medical marijuana cards. While some MRO’s have access to databases or dispensaries, out of state review officers may be limited to information obtained in the donor interview, and thus may note the claim to a card on the result but leave the verification of the card to the employer.⁴ If unsure, reach out to your MRO or TPA (third party administer) and clarify the process.

Cannabidiol (CBD)

An increasing number of candidates are claiming that CBD⁵ accounts for their positive result.

CBD is a cannabis compound typically derived from hemp. It is commonly used for medical treatments and does not typically cause a high. THC is the active compound in marijuana which causes a high. CBD and THC are two separate cannabinoids.

Drug panels screen for THC, and CBD alone should not trigger a positive marijuana test. However, there is a possibility that some CBD products may contain traces of THC. MRO’s are generally skeptical of CBD as an explanation for a positive THC test, especially considering that the cutoff on the federal panel (and many other panels, by extension) is 50 ng/mL for the initial screening and 15 ng/mL on the confirmation screening.

Last Use

While breath alcohol tests can confirm that an employee has consumed alcohol within the past 24 hours, at this time there is no approved equivalent breathalyzer test for marijuana. Saliva tests,⁶ when performed correctly, can detect marijuana use within a potential five- to 48-hour window; however, saliva tests are less common in clinics than urine screens.

Employers often ask whether an MRO can confirm that an employee has used marijuana recently or smokes frequently. However, there is no absolutely certain way for an MRO to discern this from lab test levels on a urine or hair test due to varying factors such as donor’s sex, weight and the potential frequency of donor use.

To Test or Not to Test?

Again, this falls on company discretion in the case of non-DOT drug screening.

The five panel tends to be the most common choice for drug testing; it contains marijuana, cocaine, PCP, amphetamines, and opiates. While marijuana is often the most common positive, cocaine is also a routine offender, Furthermore, with the prevalent opioid crisis,⁷ it may be unwise to eliminate all drug testing for the sake of marijuana. Drug screening serves as a deterrent⁸ to employees and is considered vital to safety-sensitive positions.

Alternatives

In place of eliminating drug screening altogether, employers can opt to amend their current drug screen policies.

One course of action is to disregard positive marijuana results and only disqualify employees based on other substances. This is not ideal or particularly advisable, as it exposes employers to legal gray areas. For instance, an employee could assert that he or she was fired over their positive result if they were terminated for another reason. Furthermore, it needlessly delays the hiring process. On average, turnaround time for negative urine drug tests is one to two days, while positives typically take seven to 10 days.

A better option is to remove marijuana from the testing panel altogether. In light of the current landscape, many labs are creating and offering panels without THC. Reach out to your occupational medical provider to see whether or not this is a possibility and to discuss your options.

Marijuana laws are changing rapidly, causing companies to question and adapt just as quickly. As recreational marijuana usage becomes more normalized, HR professionals are likely to encounter more pushback from employees. Thus, it’s a good idea to initiate these conversations internally now, so that companies can position themselves to evolve.

As always, consistency is key. Whatever drug and alcohol policy the company adopts, ensure that it is followed uniformly.

REFERENCES

¹ https://www.transportation.gov/odapc/medical-marijuana-notice

² https://www.samhsa.gov/workplace/toolkit/develop-policy

³ https://www.psychologytoday.com/us/blog/beyond-bullying/201908/medical-marijuana-and-employment-disqualification

⁴ https://www.psychologytoday.com/us/blog/beyond-bullying/201908/medical-marijuana-and-employment-disqualification

⁵ https://www.webmd.com/pain-management/cbd-thc-difference#1

⁶ https://www.healthline.com/health/mouth-swab-drug-test

⁷ https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis

⁸ https://www.samhsa.gov/workplace/resources/drug-testing