You receive a positive drug test result for marijuana – your employee or applicant says they have a medical marijuana card. What happens next?
An issue that has become increasingly impactful and confusing for employers conducting employee drug and alcohol testing is the new requirements related to medical marijuana laws in states authorizing such use.
More than half of the states and some U.S. Territories permit the medical use of marijuana to treat specific medical conditions. Each state’s law differs. The language of the medical marijuana laws in several states (and growing) expressly prohibits an employer from discriminating against an individual due to their status as a qualified medical marijuana patient.
Positive Test – Now What?
We will start with the obvious, for federally regulated drug screens (Department of Transportation (DOT), federal grant recipients, etc.), the answer is an easy one. The DOT has made it very clear that the use of state-authorized marijuana will not be a valid excuse for a federal drug test.
As an industry best practice, employers will utilize the services of a federally licensed Medical Review Officer (MRO) to, at the very least, review laboratory-confirmed positive drug test results before they are reported back to the employer. The MRO or MRO team will typically conduct a confidential interview with the donor and allow them to provide any medically verifiable evidence as to why the screening result was positive. Based on any evidence presented and whether or not that information can be verified and justified as the reason for the positive test result, the MRO will either overturn the result to a ‘negative’ or uphold the result as ‘positive’ and submit the test result to the employer.
The MRO plays a critical role to make sure that a positive test result was not due to a legally prescribed medication and to prevent an employer from potentially taking adverse action against an individual’s legitimate use of a prescribed drug in violation of disability discrimination laws.
Compared to prescription medication, the difference with medical marijuana is that marijuana remains a Schedule I drug under the Controlled Substances Act (CSA), thus being illegal to use or possess under federal law. With medical marijuana being authorized by more than two-thirds of the states in our country, hardly any employer is immune to this issue. Based on our research, MROs have primarily taken the stance that they will not make additional efforts to verify state-issued medical marijuana authorization. Presumably, the main reasons are since marijuana cannot be ‘prescribed’ like other Food and Drug Administration (FDA)-approved substances listed in Schedules II-V of the CSA. MROs all cite the fear of potentially jeopardizing their federal MRO certification. As this issue continues to grow, MROs are starting to reevaluate their role and how best to accommodate this growing impact on employers.
If you have not done so already, contact your Third-Party Associate (TPA), service provider, or MRO to clearly understand the scope of their role and what requirements remain to you as the employer.
Suggested Procedure for Employers
If your MROs policy/agreement does not provide for verification of state-issued medical marijuana authorizations, it is generally suggested that employers should:
1. Understand that the burden of proof that the individual is a legitimate medical marijuana patient rests with the employee or applicant.
2. The employee or applicant should be asked to produce a state-issued medical marijuana card.
3. The employee or applicant should be required to produce a copy of the Written Certification from a physician submitted to the state.
4. The employee or applicant should also be asked to get a note from the issuing physician that states the patient will be able to perform the essential functions of the job they are applying for or expected to conduct by the employer. Side note: here is where the importance of clear and up-to-date job descriptions is critical.
5. The employer has the option to contact the issuing physician and verify the authorization is valid and active.*
*Some states host a medical marijuana registration database, but from our research & experience, the use of these databases by employers and MROs is not permitted.
Based on the validity of the donor’s medical marijuana authorization, the details of the state medical marijuana law, and the specific job the donor will be performing, employers can then make a hiring decision.
To reiterate, the medical marijuana rules in each state will differ. The details in the language of the laws are critical to understanding as you draft internal procedures.
Action Steps for Employers
If you do not have a plan in place today, the time is now to act. Contact your TPA, service provider, or MRO to clearly understand the scope of their role and what requirements remain to you as the employer. Ensure your policy, procedures, and job descriptions are routinely reviewed and updated to stay in compliance with legal changes and to defend legal challenges.
Employers are also strongly encouraged to provide updated manager and supervisor training to ensure their staff is aware of any new laws that impact your screening program, along with any related procedural requirements that they must follow.
SAMPLE: Applicant/Employee Medical Marijuana Authorization Confirmation
As an employer, we do not need nor are we requesting any details related to your underlying medical condition(s) that qualify for your use of medical marijuana. We are simply confirming your authorization to use medical marijuana and that you will be able to perform the essential functions of your job duties safely.
To make an employment decision, we must gather additional information. Please provide us with the following:
1. Provide your state-issued medical marijuana card or authorization.
2. Provide a copy of the Written Certification from your physician that was submitted to the state.
3. Provide the attached job description to your physician. Request a note from your physician that states you will be able to perform the essential functions of the job you are applying for or expected to conduct while being employed by our company. (Job description is attached).
 On July 7, 2019, the New Jersey Governor signed an overhaul of the Compassionate Use Medical Marijuana Act, which added new section 9(b) that requires employers to provide employees or job applicants who are registered qualifying patients with an opportunity to present a legitimate medical explanation for a positive marijuana test. As part of the explanation, the employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner as proof of registration with the state. Nevada also has a requirement to allow applicants/employees an opportunity to rebut the test results.