The issue of medical marijuana is making headlines and is a hot topic in many company employment screening policy discussions. Because regulations and state initiatives are changing, companies need to have clear policy statements to guide their hiring professionals and their employees.
Testing for the use of illegal drugs has grown among company background screening practices. According to the HireRight 2009 Benchmarking Report, 68 percent of companies perform drug and/or health screening on their candidate employees with 79 percent of those performing drug screening. The companies say they perform this testing primarily to ensure a safer workplace and reduce risk to the organization. While only about 29 percent of companies screen their existing workforce for drugs, an increasing number are considering adding this testing to their ongoing practices. Of course, companies regulated by the Department of Transportation (DOT) have very stringent drug and alcohol testing requirements for both new and ongoing employees with which they must comply.
Meanwhile, thirteen states (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington) have legalized medicinal marijuana in some form. Two other states (Arizona and Maryland) have passed laws that, although favorable to medicinal marijuana, do not fully legalize it.
In 2009, a directive from the Obama administration has told federal authorities not to arrest or prosecute people who use medical marijuana for medicinal purposes or those who distribute it to them. The new guidelines, which reverse the Bush administration’s federal stance, was adopted, according to the Attorney General, in part because federal law enforcement agencies have limited resources and need them for more pressing priorities. The Department of Justice (DOJ) guidelines state that federal agents will prosecute people whose distribution goes beyond what is permitted by state law and those who use medical marijuana as a cover for other crimes.
With these changes in law and policy in mind, where do companies stand when screening employees? For regulated companies, the position is clear. The Director of the DOT Office of Drug and Alcohol Policy Compliance has stated, “We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program.” The DOT’s Drug and Alcohol Testing Regulation does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.
Non-regulated companies need to consider a variety of issues when creating their policies. Regardless of state laws, marijuana is an FDA Schedule “Controlled 1” drug that cannot be prescribed by a physician. In fact, in those states in which medical marijuana is legal, it is a physician “recommendation.” There is currently an FDA approved medication (Marinol) with a second in the pipeline that can account for a confirmed positive marijuana metabolite result. It is notable that the package inserts for both of these legal drugs contain warnings of the profound effects on mental status and advise against driving or operating complex machinery. It also warns against the patient participating in activities requiring sound judgment and/or unimpaired coordination.
Medical marijuana, not being a prescription, is even harder to gauge in terms of its potential effect on workplace safety. Employers should also note that there is case law precedence in California where the California Supreme Court decided in 2008 that there is no duty under the Fair Employment and Housing Act to “reasonably accommodate” medical marijuana as a medical explanation for an employment drug test.
If a company chooses to accept medicinal marijuana as a reason for a positive marijuana drug screen result, that company should get proof of this recommendation from the treating physician in the form of a medical safety clearance letter. This letter should state the donor is under the care of that physician, and this physician has made the recommendation of medicinal marijuana. The letter should also address that the donor can safely perform his/her basic job function with his/her appropriate use of medicinal marijuana. This letter should then be attached to the positive drug test report and stored in the donor’s confidential personnel file.
While some states may permit the use of medical marijuana, it is up to the employer to define what is acceptable in their drug-free workplace program. Companies should establish drug testing policies that accommodate their own goals and values with regard to safety, compliance, productivity and privacy.
The HireRight Blog is provided for informational purposes only and should not be construed as legal advice. Any statutes or laws cited in this article should be read in their entirety. If you or your customers have questions concerning compliance and obligations under United States or International laws or regulations, we suggest that you address these directly with your legal department or outside counsel.