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Workplace drug tests, meet medical marijuanaAs state program unfolds, employers must weigh impact of positive test results

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Employers in safety-sensitive industries, such as manufacturing and transportation, are preparing for the possibility of positive drug tests among employees who are medical marijuana patients in Pennsylvania.

Even if an employee is a card-carrying medical marijuana patient under the state law, a positive drug test is still just that, said Denise Elliott, an employment and labor attorney at McNees Wallace & Nurick LLC, in a recent blog post

That was the message from the U.S. Department of Transportation, which last fall reinforced its zero-tolerance policy for marijuana use in industries it regulates, despite moves toward legalization in multiple states.

In an October note, the DOT said that doctor-recommended medical marijuana is not an exception to what constitutes a positive drug test. Furthermore, it is still classified as a Schedule I drug under the federal Controlled Substances Act, the DOT said.

Medical review officers, who follow DOT's guidelines for verifying positive drug tests, may include a note clarifying that the tested employee is a legal medical marijuana user, but ultimately the burden is on employers to have clear drug and alcohol policies.

Employers should be considering how to address possible situations arising from a medical marijuana-induced positive drug test, Elliott said. 

Employers must be proactive now - rather than reactive later - to ensure their drug and alcohol policies are clear, consistent and well-advertised, said Theresa Mongiovi, employment and labor attorney at Brubaker Connaughton Goss & Lucarelli LLC. A thorough policy should include in what situations testing will occur and what the repercussions are for a positive test, Elliott said.  

While employers don't need to entirely rewrite their drug and alcohol policies to include medical marijuana, Mongiovi said, their current policies should provide clear guidance about it. 

Job-specific safety considerations should also be at top of mind for employers, Mongiovi emphasized.

“One of the things that employers need to think about right now is what jobs are safety-sensitive positions, and they should assess and note that on the job descriptions," Mongiovi said.

The Pennsylvania Medical Marijuana Act lays out some specific provisions regarding safety considerations, but it is largely up to employers to determine which jobs are safety-sensitive and which aren't. The law basically says that employers "have the ability to take whatever action necessary to ensure they have a safe workplace," Mongiovi said.

Employers should also remain sensitive to employees' specific needs and conditions that are treated with medical marijuana. "Most employers are already under a duty to accommodate people with disabilities," Mongiovi said.

There are still gray areas for dealing with medical marijuana in the workplace, both Mongiovi and Elliott admitted. "Under the influence" of the drug is vaguely defined in the law, Elliott said, which leaves the interpretation open to employers for the time being.

"The interplay of the medical marijuana act with other laws governing employment will be complicated and made more complicated by the fact that no regulations relative to medical marijuana and the workplace have been issued in Pennsylvania," Elliott said.

Plus, detection of impairment in workers in both safety-sensitive and non-safety-sensitive positions would also require standard, company-wide training, Mongiovi said. 

"One of the issues that we have from this is that under federal law, it's a controlled substance that's illegal, so there hasn't been a significant amount of testing," Mongiovi said. "I think eventually science will catch up so that this is non-issue, but until then, there's going to be some time where this is going to impact people differently."

As of late Thursday morning, the Justice Department was expected to announce the roll-back of a President Obama-era rule that helped advance legal marijuana in states. The move would give federal prosecutors more power to enforce federal marijuana law.

As the state program becomes operational early this year, employers should follow their policies consistently and proceed with caution and/or call an attorney when they are unsure about a situation or a course of action, Elliott advised. 

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Becca Oken-Tatum

Becca Oken-Tatum

Becca Oken-Tatum is the web editor for the Central Penn Business Journal. Email her at btatum@cpbj.com. Follow her on Twitter at @becca0t.

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