Many workplaces are updating their drug testing rules due to increased cannabis legalization. However, the Substance Abuse and Mental Health Services Administration (SAMSHA) made it clear that medical marijuana would not be an excuse for a positive drug test. Read on to learn more about worker rights.
SAMSHA announced that it amended its saliva and urine testing guidelines to clarify that medical marijuana cannot justify a positive drug test despite a lashback of popular opinion. Their announcement came in the form of notices that will be published in the Federal Register later this week.
The organization also added an amendment that stated that passive exposure or unintentional ingestion of cannabis or any drug would also not justify a positive test among federal employees. These employees may still be fired for a positive drug test, even if they participate in a state-approved medical marijuana program. The new language emphasizes the federal government’s ongoing view of cannabis as an illegal drug.
Criticism of SAMHSA’s Position
SAMSHA stated that it received several comments from people who have asked the organization to reconsider its stance on medical marijuana in the workplace. However, it stated that the revisions are backed by current law.
“Although an increased number of States have authorized marijuana for medical purposes, marijuana remains a Schedule I controlled substance and cannot be prescribed under Federal law. For both purposes of the Federal drug-free workplace program, Federal law about marijuana control superseded State marijuana laws, and therefore, a physician’s recommendation for marijuana use is not a legitimate explanation for a positive drug test,” the organization explained in their announcement.
“Current Federal law requires Federal agencies to test for marijuana under E.O. 12564 in their workplace drug testing programs,” the organization went on to state. It was referring to a 1986 executive order issued by then-President Ronald Reagan which prohibits federal employees from using Schedule I and Schedule II drugs.
The government is currently considering a bill to reclassify marijuana as a Schedule III drug. If the bill passes, the drug would still be federally illegal. However, it may eliminate the restrictions that apply to federal workers and cause SAMSHA to further revise its guidelines.
SAMSHA has stated that the revisions are meant to “clarify that passive exposure to any drug (not just marijuana smoke) and the ingestion of food products containing a drug (not just those containing marijuana) are not acceptable medical explanations for a positive drug test.”
Updated Language Regarding What Does Not Justify a Positive Drug Test
SAMSHA updated the language in the Mandatory Guidelines for Federal Workplace Drug Testing Programs to state the following:
- Passive exposure to a drug, such as exposure to marijuana smoke, cannot justify a positive drug test
- Ingestion of food products containing a drug, such as marijuana edibles and poppy seeds that contain codeine or morphine, is not an excuse for a positive drug test
- A doctor’s medical marijuana recommendation, or any other physician’s recommendation to take a Schedule I drug, cannot excuse a positive drug test
Protections for Workers That Use Marijuana
SAMSHA’s announcement comes at a time when many states are creating laws that ease restrictions on workers who use marijuana. Action has been taken at the federal level as well.
For example, lawmakers are trying to pass legislation to protect workers and job applicants who are penalized solely for cannabis use. A new Democrat-backed bill was refiled that would protect people who work in the climate industry from being fired due to a positive cannabis drug test.
The Senate passed legislation that would prohibit the CSA, NSA, and other federal intelligence agencies from denying security clearance to applicants based on marijuana use alone. The House Oversight and Accountability Committee passed a similar bill last month.
On the other hand, the House Rules Committee has blocked lawmakers who wish to create legislation that would end drug testing for federal job applicants.
Drug Testing on a State-Level
The feds are staying strict on drug testing for government workers. However, there are changes in state laws that vary by location. Generally, employers can still test their workers, but they are limited in the actions that can take for a positive drug test.
For instance, in Pennsylvania, employers can test their employees for drugs. However, a positive drug test is allowable if the employee has a medical marijuana card and does not use drugs during work hours. The law does not prohibit drug testing or prevent employers from firing employees who use cannabis recreationally or on the clock.
In New York, employers are permitted to drug test, but there is not much to justify testing. Employers may only fire employees who appear to be impaired at work. Even the smell of marijuana cannot constitute firing.
Drug testing laws can also vary based on industry. For example, workers who are required to drive commercial motor vehicles are often required to maintain sobriety in and out of the workplace regardless of medical marijuana approval and the state they work in.
Amazon Eliminates Drug Testing
Amazon, a company that supports legal cannabis and the expungement of records of people previously sentenced for cannabis-related crimes, has done away with the cannabis pre-screening drug tests for all workers except for those applying for Amazon Air positions. They stated that they would be eliminating their program for the following reasons:
- The changes in state law make it difficult for them to maintain a consistent and equitable drug testing standard
- They feel drug testing disproportionately impacts people of color
- They feel drug testing interferes with their ability to find the best talent