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Changing marijuana laws may mean it's time to review drug testing policy

You can decide to comply with state medical marijuana laws, but this will not be possible when it comes to drivers.

The legalization of marijuana in some states, both medically and recreationally, is complicating the drug testing process.

Kathryn Russo, attorney at Jackson Lewis, P.C., a workplace law firm, shared some drug testing best practices with NationaLease members at a recent meeting.

She suggested you start by reviewing your drug testing policies as they apply to both medical and recreational marijuana. Keep in mind that under the federal Controlled Substances Act, marijuana is illegal. And DOT’s Drug and Alcohol Testing Regulations (49 CFR Part 40) do not authorize medical marijuana under state law to be a valid medical explanation for a transportation employee’s positive drug test result.

Determine if you will follow federal law when it comes to positive drug tests, but Russo says before making that decision, check to see if you are a recipient of any federal funds or licenses or subject to the federal Drug-Free Workplace Act. But Russo explains that when it comes to drivers, you are subject to federally regulated safety standards and therefore cannot accommodate medical marijuana or tolerate recreational marijuana, even if it is legal in the state you are in.

You can decide to comply with state medical marijuana laws, but this will not be possible when it comes to drivers. This could mean that it is no longer feasible for you to have one drug policy that covers all of your employees.

Once you have set your drug testing policy, discuss it with your medical review officer. You as the employer must make employment decisions and comply with all applicable laws, Russo reminded meeting attendees. Make sure that your medical review officer will advise you when a medical marijuana card is presented to excuse a positive drug test result.

Ultimately, drug testing is about safety and you must weigh whether to comply with state medical and recreational marijuana laws against the risk of someone working who has used marijuana either medically or recreationally.

Russo reminded attendees that at this point there is very little case law when it comes to marijuana and positive drug tests. If you choose to follow federal law, she cautions that you may run the risk of being your state’s test case for medical marijuana accommodations. Stay tuned...

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