The landscape around cannabis use continues to change and evolve on almost a daily basis, or so it seems. Public opinion on marijuana use has changed dramatically over the last 10 – 15 years. The number of states that have legalized recreational cannabis continues to grow and at least 39 states now have robust medical marijuana programs. There are also a growing number of states that probit adverse employment actions based upon a positive test. And, if your company operates in multiple states, you will need to have multiple policies for cannabis use and testing because state laws vary so widely. One thing that has remained consistent, cannabis is still illegal at the federal level and is classified as a Schedule I substance under the Controlled Substances Act.
Let’s do a little refresher on what all of this means for workplaces here in Pennsylvania particularly as the perception of risk continues to decrease and medical use increases. There has been talk about rescheduling marijuana, moving it from a Schedule 1 to a Schedule III, but even if that is the case, its use would remain prohibited for anyone with a CDL or a safety sensitive position. It would also not remove any federal criminal penalties. In their July 2022 newsletter, The Federal Transit Administration (FTA) provided clarification that, while some states and local governments have passed legislation prohibiting testing for marijuana, this does not apply to DOT employers. https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/Newsletter-Issue-75_0.pdf
What defines “safety sensitive” in Pennsylvania under the state’s Medical Marijuana law?
According to the law, medical marijuana patients are prohibited from performing employment duties in small, confined spaces or at great heights and can be prohibited by their employer “from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana,” which includes direct patient care and direct child care workers. https://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2021&sessInd=0&billBody=S&billTyp=B&billNbr=0749&pn=0893
What about drug testing and drug testing policies?
There is no test for actual impairment when it comes to cannabis. Urine drug screens (UDS) test for THC metabolites which can show up for weeks, and sometimes as much as a month or more, after use. A positive UDS for cannabis, therefore, does not necessarily indicate that someone is under the influence at the time of the screening or that they were impaired on the job. Oral fluid testing tests for the presence of actual THC in the body and gives us the most recency of use
THC is generally detectable in saliva anywhere from an hour to 24 hours after use. For this reason, DOT has moved to add oral fluid testing as an alternative to UDS in an effort “to improve the effectiveness of drug testing.” https://www.federalregister.gov/documents/2023/05/02/2023-08041/procedures-for-transportation-workplace-drug-and-alcohol-testing-programs-addition-of-oral-fluid
What about CBD and Delta-9?
Earlier this year, SAMHSA put out an advisory on CBD that provides a good overview of cannabis, CBD and Delta-9. https://store.samhsa.gov/sites/default/files/pep22-06-04-003.pdf CBD by itself is not a psychoactive substance and pure CBD will not cause a THC positive drug screen.
The problem, however, is that even if a product says it contains no THC, even trace amounts in a CBD product can accumulate in the body and result in a positive UDS. Additionally, there are no regulations around CBD products and upwards of 70% of products tested by Consumer Reports had inconsistent labeling. https://www.consumerreports.org/cbd/can-you-take-cbd-and-pass-a-drug-test/
The labeling of many CBD products could be misleading and contain more THC than indicated since there is no federal oversight on CBD products. Therefore, anyone who is subject to random drug testing needs to be careful with CBD products.
If you have questions, or are interested in training around substance use and the workplace, you can contact 21st Century EAP for more information.
