Declaring a Drug Test Positive: Who Has Final Say on Medical Marijuana?

(Fall 2017 [updated March 2021]) Medical Review Officers (MROs) offer important oversight in the drug testing process by making the final determining if a drug test is ruled positive or negative. The MRO’s role is to verify that an individual has a legal explanation, i.e., a prescription, for having a substance in his/her system at the level it shows.

All federally mandated drug tests (e.g., under the Department of Transportation regulations) – long acknowledged for their defensibility and employee privacy protections – require the involvement of an MRO. These federal testing protocols are considered best practice for drug testing and include these steps:

1. An employee provides a urine specimen at a controlled collection site using a chain-of-custody form.
2. The specimen is shipped, under specific protocols, to a federally certified laboratory for testing. There, a portion of the specimen undergoes a scientific analysis that is said to be 92-98% accurate.
3. If the specimen is positive at this initial level of analysis, it goes through a confirmatory testing process called gas chromatography/mass spectrometry (GC/MS) to look for the chemical signature of the drugs designated in the test. If the drug or its metabolites are present at or above the pre-announced level, then the specimen is ruled scientifically positive.
4. However, before the employer or the employee know the scientific results, one final check is done. An MRO reaches out to the employee to discern whether there is a verifiable reason that the drug in question is present in the employee’s system at that level. The test will be ruled “negative” if the employee has a verifiable, legitimate reason.

When it comes to drug testing for marijuana, the proliferation (and variance) of medical marijuana laws have complicated the picture for employers. While still illegal under federal law, state and even local laws regarding medical marijuana can cause confusion for what could be argued as a legitimate reason for having marijuana in one’s system. Of course, for a federally required test, the MRO’s ruling for marijuana is clear – a positive test is a positive ruling and thereby a violation.

However, when it comes to a non-mandated test, in a state with legalized medical marijuana, employers must be sure they have detailed, in writing, their position and protocols regarding their employees’ medical use of marijuana. Doing so gives fair notice to employees and supervisors and lets them know what they should expect from their organization when it comes to drug testing and consequences.

If a non-mandated workplace wants to allow “passes” on a marijuana test for employees with a medical marijuana recommendation, the employer has two options. The organization could drop marijuana from the panel of drugs to be tested. Or, the employer could maintain marijuana testing and, in the case of a positive marijuana result, follow the actions declared in their policy for responding to an employee’s claim of using marijuana because of a medical recommendation.

MROs are not willing to open themselves up to potential liability involving medical marijuana. Because of the great variations between federal, state and local regulations, it can be an involved process for an MRO (who may serve a national clientele) to accurately verify the credibility of a medical marijuana recommendation claim. Additionally, such activity is not supported by the professional standards and credentialing bodies of the MRO industry.

Bottom line, for non-mandated testing, employers should adopt a 3-step protocol, two steps of which mirror federal testing requirements: testing for marijuana and investing in an MRO review. Accompanying these steps should be additional policy and procedural directives that address the organization’s position on marijuana (whether the employer is accommodating the use of medical marijuana or not).

1. Maintain marijuana in the testing panel. From a safety perspective, this is a responsible action. Drug tests positive for marijuana are increasing, and we know using marijuana can compromise safety. To limit and contain exposure, employers need to continue testing for marijuana to show vigilance in their efforts to provide a safe workplace, a general duty under OSHA.
2. Involve an MRO in the test review process. This limits the information an employer receives directly from the employee. Following a positive test, without a confidential exchange between the employee and the MRO, the test will be ruled positive. Unfortunately, when employees are told they have a positive test, they often shout, “Foul!” and blurt out the medical condition being treated with the drug. This can put the employer at risk for a variety of complications – issues of confidentiality, discrimination and responsibilities for accommodation among them – because they now know of a medical condition that the employer may not have a business-related reason to know. Hearing this information and discerning its business-importance is best done by a medical professional, the MRO.
3. Specific guidelines articulated, in writing, about actions that will result following an MRO declaration of a positive marijuana test. Non-mandated employers who are willing to accept a medical marijuana recommendation and excuse the positive test need to commit, in writing, steps to be taken after the positive test result. These guidelines will likely denote marijuana-prohibition for any safety-sensitive positions or activities in the organization. For other employee roles, organizations should include guidelines around receiving and confidentially filing a copy of the patient’s verification card along with documentation around these questions:
   • Is it necessary for the employee to have marijuana measurably in his/her system during office hours?
   • Have other alternatives been considered, i.e., can the organization work with the employee and his/her physician to find alternative (federally legal) treatments?
   • Does the extent of the illness or disability require other accommodations, such as reduced or altered duties or a reduction in employment status?
   • What is the organization’s legal responsibility according to their state’s marijuana laws?
   • How will a request to accommodate a medical marijuana recommendation affect other employees?
   • What are the implications if the organization refuses to accommodate a medical marijuana recommendation?

One last note: It is important for organizations to know what their state and local laws say regarding marijuana (medical and recreational) and non-mandated drug tests. In locales where employers have legal latitude about the corrective actions they can take for a positive test, such as Ohio, it is imperative to think through all the ramifications. Give fair notice, preferably in writing, and be able to verify that employees received the organization’s position, so they know the expectations and consequences. Then consistently follow the organization’s established procedures.

This is a new and dynamically changing area of law and of operating a drug-free workplace program. Employers will benefit from gaining insights and support from their legal counsel and strengthen their position in case of a potential legal challenge if they follow best practices – utilizing an MRO and standardizing their position and protocols regarding marijuana.

A responsible place to begin is “at the beginning.” Not familiar with all the surrounding issues of medical marijuana and the workplace?  Our Medical Marijuana Operational Considerations Toolkit is a great place to start.

DISCLAIMER: This publication is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the publication are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.