How to approach medical and recreational marijuana legalization
For the last twenty years, scientific research has been trying to understand how marijuana affects the body, the mind, and its role in workplace safety.
First, to be clear, marijuana is still a schedule 1 drug federally. This means the drug has no accepted medical use in the United States and using schedule 1 drugs can put a person at a high risk for developing a substance use disorder.
All schedule 1 drugs are required to be included in federally regulated drug test panels, which includes other drugs like: ecstasy, heroin, and LSD.
While there were legal issues and little funding to produce ideal research studies, in 2017, a report from the National Academies of Sciences, Engineering, and Medicine rigorously analyzed more than 10,000 cannabis research studies since 1999 to identify if there was limited, moderate, or substantial statistical evidence of positive or negative health affects with the drug.
According to the report, cannabis has legitimate medicinal benefits for a variety of ailments, but also has been shown as:
- a contributor to certain mental health issues
- has a role as a gateway drug to some degree, and
- has substantive evidence of a statistical association between cannabis use and increased risk of motor vehicle crashes
Today, a new study published in the journal BMJ Open Respiratory Research found that using recreational marijuana is associated with a 22% increased risk of emergency room care and being hospitalized for any reason.
The research study looked at Canadian health records data for over 30,000 Ontario residents between the ages of 12 and 65 over a six-year period.
“Cannabis use is not as benign and safe as some might think. Our study demonstrates that the use of this substance is associated with serious negative outcomes, specifically, ED (emergency department) visits and hospitalizations,” the study author Nicholas Vozoris said in an email to CNN.
Beyond federal regulations, there have been a lot of changes from one state to another on medical and recreational marijuana use. As of 2023, recreational marijuana is legal in 21 states after voters passed measures in Maryland and Missouri.
The primary reason for prohibiting use of marijuana in the workplace is because early research points to a link between illicit drug use and workplace accidents due to short-term effects of impaired body movement, difficulty thinking, memory problems, and altered senses.
Until further research is conducted, employers should review all applicable medical and recreational marijuana laws carefully when setting up a drug testing. This means to clearly state when testing is required for the drug and the consequences of a positive test.
If your business is not federally regulated, you can set up a policy however you feel comfortable, such as:
- only performing pre-employment drug testing without testing for marijuana
- only performing post-accident drug testing and including marijuana
- only targeting safety-sensitive roles for pre-employment, post-accident, and random drug testing and including marijuana
Finally, be open with your employees by providing educational materials on how marijuana affects the body and the risks of impairment at work and update your managers on reasonable suspicion training.
How to address CBD products
In 2018, the definition of marijuana under the Controlled Substances Act removed hemp from the definition. If a hemp-derived product (such as CBD) has less than 0.3 percent tetrahydrocannabinol (THC), it is not a controlled substance.
The confusion is whether safety-sensitive employees such as truck drivers, bus drivers, transit vehicle operators or pilots can safely use CBD products while enrolled in a federal drug and alcohol testing program.
While CBD products that fall under the 0.3 percent THC threshold are legal for safety-sensitive employees to use, the FDA does not certify the THC levels these products contain, and many contain higher levels than the label indicates.
If a safety-sensitive employee were called for a random DOT drug test and happened to use one of these mis-advertised products, they could end up with a positive drug test result.
Since using a CBD or hemp product is not a “legitimate medical explanation” for a confirmed positive marijuana result, it would result in the employee being pulled from safety-sensitive functions until the return-to-duty process has been complete.
Companies need to safeguard themselves when it comes to positive drug tests resulting from CBD products with more THC than advertised. This can be done by warning employees of the company’s drug testing policies and the issues surrounding CBD products.
Below are some guidelines when adding CBD limitations in your company policies.
Review state laws
Employers can prohibit the use of marijuana on their premises, even if an employee is legally allowed to use it for medicinal purposes, and job applicants—as well as hired workers–who test positive for THC, can be denied employment, or fired if that is the workplace policy.
Remember, most CBD products are not regulated by the FDA and run the risk of containing more than the federally permissible amount of THC, even if sold in a state that does not permit the sale of marijuana products. So, there is a possibility that an employee could use what he or she believes to be a legally permissible, hemp-derived CBD product, but the unregulated product could trigger a positive test result for THC.
There are some state or jurisdiction exceptions, such as New Jersey, Oklahoma, and New York City.
Reviewing state and city rules is important as there is a possibility that an employee could use an unregulated legally permissible CBD product and trigger a positive test result for THC.
An employer may not know whether the positive result was triggered by CBD oil or marijuana use. In those types of situations, an employer may not definitively know whether the positive result was triggered by CBD oil or marijuana use.
Training managers on approaching CBD products in the workplace
Managers need to know what to do when an employee defends a positive drug test result due to them using a CBD product.
It is best practice for employers to refrain from acting until they have a conversation with the worker.
Regarding CBD use, there is not necessarily a one size fits all approach. An employer might even decide to make an exception to its drug policy if the person has a disability for which he or she uses CBD oil, particularly if he or she is not impaired on the job.
For companies regulated by the DOT, a Drug and Alcohol Supervisor Training is required, which covers how to deal with the use of and the suspected use of illegal drugs and alcohol.
Ideally, employees should let their workplace know about them using a CBD product for medical purposes by going to a doctor, getting a prescription, and sharing it with the employer. This will help prevent people trying to do the right thing from being penalized.
Additionally, employers should work with employment counsel and prepare to be flexible until more CBD rules are in place. This means your managers will need to know how to address situations where an employee defends a positive drug test result by using CBD.
If someone who is using CBD oil keeps their use of it private and tests positive for THC, it is best practice for employers to refrain from acting until they have a conversation with the worker. An employer might decide to make an exception to its drug policy if the person has a disability for which he or she uses CBD oil, particularly if he or she is not impaired on the job.
Ideally, employees should give their workplace a heads-up. It is best practice for an employee using CBD products to alert their employer so there are no unexpected consequences down the line. The simplest thing to do is go to a doctor, get a prescription, and make sure your employer is aware of it as we do not want people trying to do the right thing to get penalized.
Employees should also read CBD product labels carefully. However, it is still a very much ‘Buyer Beware’ CBD world, so consider cutting out CBD while job hunting until CBD products are better regulated.
What about DOT medical cards and non-CDL driver marijuana use
The federal DOT health history form can cause an automatic disqualification when it comes to marijuana history.
While marijuana has been decriminalized in 32 states, it remains illegal at the federal level. This means workers who are required to be tested under federal and state law (such as commercial motor vehicle drivers) can still be drug tested for marijuana.
However, this is leading to confusion about whether drivers operating CMVs without a commercial driver’s license can legally use marijuana in states where it is legal.
Non-CDL drivers that drive a commercial motor vehicle are often hotshot carriers driving an F-350, a part of the construction, waste, or landscape industries, or are local distribution drivers.
While these non-CDL drivers are not required to be in a drug testing program like their CDL counterparts, they still must pass a DOT physical to obtain a medical card.
It is this federally regulated medical card process that can get non-CDL drivers into trouble.
Non-CDL drivers of a CMV are not required to have a DOT drug test and many companies and drivers assume it is okay to consume marijuana in states where it is legal.
However, the federal DOT health history form can cause an automatic disqualification when it comes to marijuana history.
According to the federal regulations under FMCSR 49 Part 391, the use of Schedule 1 drugs by a driver is an automatic disqualification from operating a CMV.
There two questions on this form that can disqualify non-CDL drivers with past marijuana use:
- 31. Have you used an illegal substance within the past two years?
- 32. Have you ever failed a drug test or been dependent on an illegal substance?
Marking “yes” warrants either a non-federal drug test or an automatic disqualification.
If a non-CDL driver tests positive on this drug test, they are not subject to any DOT drug testing requirements (such as the SAP process, unless their company policy requires it) but are automatically disqualified from obtaining a medical card and operating a commercial motor vehicle.
If this driver wanted to get a medical card in the future, they would have to fill out the federal form again and answer the two illegal substance questions again.
Based on the federal form, the driver may have to wait two years to get their medical card, otherwise be subject to the penalties.
If the driver lies on the form and is caught in a DOT investigation, the false information may cause civil or criminal penalties under 49 CFR 390.37 and 49CFR 386.
Does your policy test for prescription painkillers or other opioids?
The Centers for Disease Control and Prevention (CDC) recently showed that opioid prescriptions have nearly quadrupled from 1999 to 2014 and prescription opioid overdose deaths increased similarly during this period.
In fact, more than 240 million prescriptions were written for opioids in one year, according to a study from the Department of Health and Human Services (HHS). This is more than enough to give every American adult their own bottle of pills.
More recently, the opioid epidemic has been amplified with the national reemergence of fentanyl – a synthetic opioid that is 40-100 times more potent that heroin and has a high risk of overdose and addiction. Fentanyl is sometimes prescribed to treat severe pain, such as in cancer patients.
Employers need to make sure to drug test for synthetic opioids, which the DOT did back in 2018, adding four commonly abused opioids: hydrocodone, hydromorphone, oxycodone, and oxymorphone.
However, employers need to make sure there is a clear review by a Medical Review Officer to determine if prescriptions caused a positive drug test before terminating an employee.
Managers also need to refresh themselves on the requirements and the importance of reasonable suspicion to keep the workplace safe.
There are several signs and symptoms employers should be aware of when abusing opioids. These include:
- Slurred speech
- Unsteady standing or walking
- Inability or difficulty completing routine tasks
- Disorientation or confusion
- Erratic or unusual behavior
It is common practice to have safety-sensitive employees report the use of prescription or over-the-counter medications that could impact safety. Employees in dangerous jobs should not report for work while using prescription or over-the-counter medications that could affect their ability to perform their jobs safely.