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Occupational Medicine Resources


OCR Notice of Nondiscrimination

OCR Notice of Nondiscrimination (Spanish)


Jim L. Swart
Director, Office of the Secretary of Transportation
Office of Drug and Alcohol Policy and Compliance

Recently, some states passed initiatives to permit use of marijuana for so-called "recreational" purposes.

We have had several inquiries about whether these state initiatives will have an impact upon the Department of Transportation's longstanding regulation about the use of marijuana by safety‐sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others.

We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation's regulated drug testing program. The Department of Transportation's Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.

Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used "recreational marijuana" when states have passed "recreational marijuana" initiatives.

We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use "medical marijuana" when states have passed "medical marijuana" initiatives.

It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana.

We want to assure the traveling public that our transportation system is the safest it can possibly be.

Drug Testing Practices Expected to Stay the Same Despite New Marijuana Laws
Employers are expected to keep existing policies in place despite I-502

By Linn Parish
Of the Journal of Business
Dr. Paula Lantsberger says that even with the legalization of marijuana in Washington state, many employers will have policies that prohibit its use and will continue to screen for it.
-Staff photo by Linn Parish

When new laws regulating marijuana use go into effect today, Dec. 6, those employed in workplaces that routinely test for drugs probably will still want to refrain from toking up.

Chances are good that Washington state employers that prohibited marijuana use prior to the passage of Initiative 502 will continue to do so, even if possessing and smoking small amounts of the drug are legal within the state.

"It hasn't changed anything for us," says Dustian Coates, a specimen collection technician at the Spokane Valley office of American Mobile Drug Testing. "Until federal law says it's OK, it probably won't."

Passed with 55.7 percent voter approval in the Nov. 6 general election, Initiative 502 makes it legal in Washington state for an individual to possess up to one ounce of marijuana bought from a licensed vendor and sets up a structure for taxing the drug. The initiative prohibits underage usage, and driving while under the influence remains illegal.

Douglas Hiatt, a Seattle attorney who co-founded Sensible Washington, an organization that calls for the repeal of all marijuana laws but was not involved in Initiative 502, says he supports broader reform and feels the new provisions don't go far enough.

Consequently, on the job, he says, "Absolutely nothing changed due to 502. You're still in trouble in the workplace."

Nancy Nelson, president of Spokane Valley-based staffing company Humanix Corp., says slightly more than half of the companies with which it places temporary employees request that those workers be screened for drug use. She says that percentage has been increasing in recent years.

"I haven't heard of any of our clients changing course," Nelson says.

Brandi Smith, communications specialist at Avista Corp., says the Spokane-based utility has had the same drug policy in place since 1989 and doesn't plan to change it. The policy covers all of the company's 1,500-some employees, regardless of job duty, and subjects each worker to testing before being hired and random monthly testing thereafter.

"Safety is paramount with us," Smith says. "We're not considering any changes to our alcohol and controlled-substance policy."

While safety is the primary reason for keeping the policy as written, Smith says another factor for Avista is that it has employees in four states, and marijuana remains illegal in three of those states.

For that company and others, federal regulations apply to a number of occupations and require drug testing. The U.S. Department of Transportation sent out a drug-and-alcohol policy and compliance notice earlier this week stating that recently passed state initiatives, including Washington's Initiative 502, won't have any bearing on the DOT's drug testing program. The agency says it doesn't authorize the use of marijuana for any reason.

DOT's regulations pertain to people working in safety-sensitive transportation careers, including pilots, truck drivers, train engineers, ship captains, pipeline emergency-response personnel, and aircraft-maintenance personnel, among others.

Dr. Paula Lantsberger, president of Spokane-based Occupational Medicine Associates PS, says that while federal law regulates testing of a number of professions, many companies that don't fall under any sort of federal control will continue to call for testing for marijuana, among other drugs. Occupational Medicine Associates currently handles testing for more than 1,500 employers, and that number has increased each year since the company started in 1994.

She says that even with legalization of marijuana, employers are within their rights to test for its usage and take action if an employee tests positive. Already, she says, some employers have policies that prohibit employees from using substances that are legal and take action if that substance is detected in a drug screen. Such substances include tobacco, certain prescription drugs, and—though rare—alcohol.

That sentiment is echoed by Tom Pool, executive director of Bothell, Wash.-based Drug Free Business, an organization with about 3,000 member companies, including some based here.

Pool says, "A change in the controlled-substance law doesn't affect an employer in any way. The main reason an employer tests is safety and efficiency in the workforce."

He adds that not all workers understand that dynamic. He says he's heard anecdotes from member businesses about employees who got high after hearing of Initiative 502's passing and were surprised to learn their employer was still testing for the drug, and they were being disciplined for a positive test.

"Employers don't do this to enforce the law," Pool says. "They test for marijuana because it has a consequence on the employee and—if they are civic minded—the community."

Lantsberger says a typical drug screen is what's referred to as a five-panel test, which looks for cocaine, amphetamines, opiates, PCP, and marijuana—or more specifically, an ingredient in it known as THC.

Marijuana is the most commonly detected of the five drug types, and amphetamines and cocaine frequently swap between second and third place, Lantsberger says. The hallucinogen PCP is rarely found, she says.

Testing typically is random, though many employers' policies give supervisors the right to call for a test if they have a reasonable suspicion that an employee is impaired while on the job.

The most common method of testing occurs by taking a urine sample, with hair samples being the second most common. Test samples also can be taken from fingernails, saliva, and blood, though all three of those are somewhat less common.

Lantsberger adds that one part of Initiative 502 that she finds odd is that it calls for law enforcement to take a blood sample to determine whether someone is under the influence of marijuana.

"It's odd that it requires a test that is not standard in medical practice," she says.

Avista's Smith says that an employee who tests positive is referred to a substance-abuse treatment program. Employees who refuse treatment typically are terminated, she says. If an employee starts treatment but doesn't finish successfully, it's up to the supervisor to determine whether the employee will be retained, she says.

Lantsberger says it's common for employers to offer a treatment option to employees who test positive, though some have zero-tolerance policies.

Marijuana can remain detectable for a number of weeks, depending on how much a person smokes, that individual's physiology, and the method used to test for it, Lantsberger says. A person who is physically fit and smokes once could test negative within a week, and a person who is obese and smokes regularly could test positive two months after last usage.

Lantsberger and Pool both say there isn't a medically accepted method for testing whether someone is presently under the influence of marijuana—nothing similar to a blood-alcohol content test on which DUI laws are based. Consequently, she says, a person can only be clinically tested for presence of the drug, not whether he or she is presently under its influence.

Pool says, "It would be wonderful if there was (such a test), but with THC, it doesn't exist."

What Initiative 502 Means for Employers

Occupational Medicine Associates

Initiative 502 will legalize the possession of one ounce of Marijuana in Washington State for those over 21. How will this new law affect your company and your employees?

The new state law gives no protection from workplace drug policies. As an employer, if you have a zero-tolerance drug policy you have the right to enforce it.

According to an article from the Puget Sound Business Journal by Greg Lamm where he interviewed James Shore, a labor and employment law attorney and partner at the Seattle law firm of Stole Rives LLP, Shore recommends five things employers should do:

  1. Have a written policy covering substances such as drugs and alcohol.
  2. Make sure that policy covers any drugs that are illegal under state, federal and local law. Since Washington's legalization law is in conflict with federal law, which says marijuana, is still an illegal drug, "cover the whole gamut," Shore said.
  3. Make sure that the policy prohibits any detectable amount of illegal drugs, as opposed to using "under the influence" standard. Shore said that will take away some of an arbitrator's discretion, particularly in a union setting over what is deemed fair or just. "It puts everyone on notice," Shore said, and avoids situations where a worker might say he only smoked a joint at a party two weeks ago prior to a drug test and didn't know it was still in his system.
  4. It also takes away any question of whether an employee smokes pot on the job or off duty. "It is whether it is in your system. That's all that matters." (Depending on the person, marijuana can stay in your system for up to 45 days).
  5. Employers with multiple locations in multiple states should have one consistent policy and should make sure that all levels of their human resources personnel know how to handle marijuana issues, including medical marijuana issues, as they arise.
  6. Be prepared to see marijuana come up in collective-bargaining and termination negotiations with unionized employees. Under some contracts, employers have the right to immediately fire someone for failing a drug test, Shore said. Or the contract may call for employees to be given just one chance to keep their job if they go through rehab.

In a Medical Review Officer list serve that OMA's Medical Review Officers belong to, "using marijuana to get high (i.e., recreational use) does not constitute an alternative medical explanation". That has been true in the past. And, it doesn't change with passage of Washington initiatives that make recreational use of marijuana legal under state law.

The most important thing to do is to look at your company policy and educate your employees that recreational use can show up on a drug test and can be cause for disciplinary actions according to your policy.