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Feds Clarify That Doctor-Recommended Medical Marijuana Is No Excuse For A Positive THC Test Under New Workplace Guidelines



A top health agency has formally revised federal workplace drug testing guidelines to clarify that using medical marijuana under a doctor’s recommendation in a legal state is not a valid excuse for a positive THC test.

In a pair of notices set to be published in the Federal Register on Thursday, the Substance Abuse and Mental Health Services Administration (SAMHSA) announced that it had amended guidance of saliva and urine testing to include the cannabis policy clarification, despite receiving comments opposing the proposal after they were first announced last year.

The agency did make one change to its initial plan, however. The updated language now notes that passive exposure to or unintentional ingestion any illegal drug—and not just cannabis—does not excuse a positive test for the purposes of federal employment.

While it is already the case that participating in a state medical cannabis program doesn’t shield federal workers from being fired over marijuana use, the newly adopted language further clarifies the federal government’s ongoing prohibitionist stance.

In the new notices, SAMHSA acknowledged that it received a number of comments urging reconsideration of the marijuana testing policy, with many taking the opportunity to call for federal cannabis legalization. But it said the current law justifies the revised guidance.

“Although an increased number of States have authorized marijuana use for medical purposes, marijuana remains a Schedule I controlled substance and cannot be prescribed under Federal law,” it said in both notices. “For purposes of the Federal drug free workplace program, Federal law pertaining to marijuana control supersedes State marijuana laws, and therefore, a physician’s recommendation for marijuana use is not a legitimate medical explanation for a positive marijuana test.”

“Current Federal law requires Federal agencies to test for marijuana under E.O. 12564 in their workplace drug testing programs,” SAMHSA said, referencing a 1986 executive order issued by President Ronald Reagan in 1986 that generally prohibits government workers from using Schedule I and Schedule II drugs.

However, the U.S. Department of Health and Human Services (HHS), which is the umbrella agency that SAMHSA falls under, has recently recommended that the Drug Enforcement Administration (DEA) move marijuana from Schedule I to the less strict Schedule III of the Controlled Substances Act (CSA).

That wouldn’t federally legalize marijuana. But because that Reagan era order defines “illegal drugs” as only those in Schedules I and II, some attorneys believe rescheduling to Schedule III could lift marijuana restrictions that currently apply to all federal workers. If that turns out to be the case, SAMHSA would need to potentially further revise the newly adopted changes to federal workplace drug testing guidelines.

For now, the only meaningful new amendment to SAMHSA’s initially proposed cannabis language from last year is meant to “clarify that passive exposure to any drug (not just marijuana smoke) and ingestion of food products containing a drug (not just those containing marijuana) are not acceptable medical explanations for a positive drug test.”

Here’s the updated language for Sections 13.5(c)(2) and 13.5(d)(2) of the Mandatory Guidelines for Federal Workplace Drug Testing Programs: 

(i) Passive exposure to a drug (e.g., exposure to marijuana smoke) is not a legitimate medical explanation for a positive drug test result.

(ii) Ingestion of food products containing a drug (e.g., products containing marijuana, poppy seeds containing codeine and/or morphine) is not a legitimate medical explanation for a positive urine drug test result.

(iii) A physician’s authorization or medical recommendation for a Schedule 1 controlled substance is not a legitimate medical explanation for a positive drug test result.

The revision comes at a time of heightened awareness of the conflict between state laws allowing for some form of legal cannabis access and workplace drug testing policies that bar such use.

At the federal level, lawmakers have worked multiple angles in recent legislation to try and provide protections for workers and job applicants against being penalized solely due to cannabis.

For example, people working in the climate sector would be protected from being fired for testing positive for marijuana if they’re based in a legal state under a newly refiled bill from more than 40 congressional Democrats.

The House Rules Committee has repeatedly blocked attempts by lawmakers to end the practice of drug testing federal job applicants for marijuana as part of large-scale spending bills this session.

Over in the Senate, however, members passed defense legislation in July that contains provisions to bar intelligence agencies like the CIA and NSA from denying security clearances to applicants solely due to their past marijuana use.

The House Oversight and Accountability Committee also passed a standalone bipartisan bill last month that would prevent the denial of federal employment or security clearances based on a candidate’s past marijuana use.

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