Typically, a drug test cannot be certified as positive until a Medical Review Officer (“MRO”) verifies the result. For drivers subject to the Federal Motor Carrier Safety Act, Department of Transportation Regulations state that an MRO must verify as positive a confirmed test result for drugs, unless the employee presents a legitimate medical explanation for the presence of the drug in his/her system. The employee bears the burden of establishing the legitimate medical reason for the positive test.
With the passage of state laws legalizing the use of medical marijuana, including here in Pennsylvania, many have questioned whether the use of medical marijuana, pursuant to state law, constitutes a legitimate medical reason for a positive drug test. In an updated “Medical Marijuana Notice” issued this fall, the Department of Transportation answered the question. The DOT said “No.”
The DOT’s Notice makes it clear that marijuana, in all forms, remains illegal under federal law and the DOT expects that MROs will treat marijuana, whether used recreationally or medicinally, as illegal. Accordingly, the Notice provides that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana’ . . . It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”
The implications of medical marijuana use for CDL drivers is now clear.
But, what about drug tests for employees not regulated by the DOT?
The reality is that most MROs follow DOT testing guidelines for all drug tests in an effort to ensure consistency. Accordingly, even when a non-DOT regulated employee tells the MRO that he/she is certified to use medicinal marijuana, the MRO will nonetheless certify the test as positive. The MRO may include an external note to the employer that the employee claimed medicinal use. However, the MRO will not seek to confirm the employee’s claim or to otherwise determine if the employee is a certified user.
The take-away is this . . . drug testing facilities will not help employers decide how to handle medical marijuana use. A positive drug test will be a positive drug test, regardless of whether the employee is certified to use medical marijuana. Accordingly, at the end of the day, outside of the CDL context the burden remains on the employer to decide, in accordance with its policies, how, if at all, the employee’s medicinal use impacts employment status.