b'Operations & SafetyMarijuana and Drug Testing Getting Into The Weeds, Part 2By Steve Watring of Auman, Mahan & FurryT his is an update on an article I wrote last year, in light of the changing legal environment. Marijuana use is now legal to some extent under the laws of most states and in some municipalities.But marijuana use still is illegal under federal law.What is an employer to do?In general, an employer can still consider marijuana use, even prescribed marijuana use, to be a violation of its policy.This means that in most states, an employer can refuse to hire or terminate someone for medical marijuana use.Marijuana is a Schedule I controlled substance, meaning that is has no legal uses under federal law.The Americansand as one of the tested substances. Compliance with with Disabilities Act does not protect the current illegaldrug policies and drug testing may be a condition to use of drugs. Most state medical marijuana laws doparticipation in any number of government programs, not expressly prohibit an employer from discharging orand those programs generally mandate inclusion of taking any other adverse action against an employeemarijuana as a covered substance.for using medical marijuana. While almost every adverse employment action carries a degree of risk, the risks hereThe DoT has repeatedly driven a bulldozer through appear to be relatively low in most states. the idea that users of medical marijuana should get a The United States Department of Transportation and thepass when tested positive.In fact, as recently as June Department of Health and Human Services have long20, 2017, the DoT updated and re-issued a Medical been the standard bearers in the area of drug testingMarijuana Notice reaffirming that use ofmedical and have long included marijuana as a mandatorymarijuana under state law cannot be considered a valid substance to be tested.Even if your company is notmedical explanation for a positive DoT drug test.directly subject to these regulations, many state andTherefore, if your company is directly covered by DoT federal laws incorporate by reference DoT and DHHSregulations, you should not exempt marijuana use under procedures and requirements. your policy, even if that use is legal under state law.In Said another way, DoT and DHHS regulations often aremy opinion, the same thing is true if you are indirectly woven into the fabric of other drug testing laws andmade subject to those regulations because of other regulations.For example, if your company wants to bid orgovernment laws.perform on any state or federal government projects thatIf your drug policy is not subject to government require a drug policy or drug testing, your safest courseregulations, you can choose to exempt marijuana use of action is to include marijuana as a part of your policyfrom your policy.For most employers, I believe that the'