b'Medical Marijuana and Drug Testing: Getting Into The WeedsBy Steve Watring - Auman, Mahan & FurryM arijuana use is now legal to someyour policy, even if that use is legal under state law.In my extent under the laws of mostopinion, the same thing is true if you are indirectly made states and in some municipalities.subject to those regulations because of other government But marijuana use still is illegal underlaws or customer requirements.federal law.What is an employer to do? If your drug policy is not subject to government regulations In general, an employer can still consider marijuana use,or customer requirements, you can choose to exempt even prescribed marijuana use, to be a violation of itsmarijuana use from your policy.For most employers, I policy, unless the employer is in one of those few (primarilybelieve that the better approach is to cover marijuana use.coastal or western) jurisdictions where that is no longer theIf your policy is worded correctly, you still should have case.Likewise, most employers normally still can refuse tomultiple options for how to deal with an employee who hire applicants and discharge employees who test positive.tests positive.But if you would rather not treat it as a Marijuana is a Schedule I controlled substance, meaningviolation, that is your right.that is has no legal uses under federal law.The AmericansFor DoT testing, any positive result for marijuana must with Disabilities Act does not protect the current illegalbe reported as a positive.For non-DoT testing, once you use of drugs.Most state medical marijuana laws do notdecide how you want to handle marijuana use under your expressly prohibit an employer from discharging or takingpolicy, the next step is to interface with your drug screening any other adverse action against an employee for usingcompany or Medical Review Officer.Otherwise, you are medical marijuana. While almost every adverse employmentleaving the decision up to them.For example, some drug action carries a degree of risk, the risks here appear to betesting professionals have a policy of reporting a positive relatively low. medical marijuana test as a negative result absent contrary The answer is more complicated if you want to makeinstructions from the employer.Even worse, you probably some exception for marijuana use.In that case, thewont even know that the employee actually tested positive.answer depends on whether your drug policy is subject toThe drug testing professional should honor your requests government regulations or customer requirements. in this regard, at least with respect to medical marijuana.If The United States Department of Transportation and thethey wont honor your preferences, find someone who will.Department of Health and Human Services have long beenUnfortunately, I must conclude with a couple of the standard bearers in the area of drug testing and havedisclaimers.The law in this area is changing rapidly and long included marijuana as a mandatory substance to bemay become different with the passage of time.While tested.Even if your company is not directly subject to theseemployers may find this as a useful general guide, they regulations, many state and federal laws incorporate byshould consult with competent employment law counsel for reference DoT and DHHS procedures and requirements. specific advice.Said another way, DoT and DHHS regulations oftenSteve Watring (saw@amfdayton.com) is a partner in the are woven into the fabric of other drug testing laws andlabor and employment law group of Auman, Mahan & regulations.For example, if your company wants to bidFurry.He has counseled employers, written articles and or perform on any state or federal government projectsgiven speeches on drugs and alcohol in the workplace since that require a drug policy or drug testing, your safestthe 1980s.Steve formerly served as chair of the Dayton course of action is to include marijuana as a part of yourChamber of Commerces Drugs Dont Work Committee.policy and as one of the tested substances. ComplianceHe is a Certified Specialist in Labor and Employment Law.with drug policies and drug testing may be a condition toHe holds a Preeminent rating from Martindale-Hubbell, participation in any number of government programs, andand has been recognized as a Super Lawyer.those programs generally mandate inclusion of marijuana as a covered substance.The same may be true for customer-mandated testing.The DoT has repeatedly driven a bulldozer through the idea that users of medical marijuana should get a pass when tested positive.In fact, as recently as June 20, 2017, the DoT updated and re-issued a Medical Marijuana Notice reaffirming that use ofmedical marijuana under state law cannot be considered a valid medical explanation for a positive DoT drug test.Therefore, if your company is directly covered by DoT regulations, you should not exempt marijuana use under www.mrca.orgMidwest Roofer 37'