Important Compliance Update: DOT Clarification on Marijuana Rescheduling and Drug Test Verifications

The U.S. Department of Transportation (DOT) Office of Drug and Alcohol Policy and Compliance (ODAPC) has released official guidance regarding laboratory-confirmed marijuana positive drug test results following the DEA’s reclassification of certain marijuana products to Schedule III.

In short, Medical Review Officers (MROs) cannot deem a laboratory-confirmed marijuana positive test as “negative” based on an employee’s use of a State-licensed medical marijuana product. State-issued medical marijuana cards, dispensary receipts, or physician recommendations do not constitute a “legitimate medical explanation” under 49 CFR Part 40

See the full and official announcement from ODAPC here:

§ 40.137, 40.141, 40.151 05/26

QUESTION:

Recently, the Drug Enforcement Administration (DEA) issued an order (Order) that reclassified FDAapproved drug products derived from marijuana and marijuana products regulated by a State medical marijuana license from Schedule I to Schedule III drugs under the Controlled Substances Act (CSA). When reviewing a laboratory reported marijuana positive drug test result, can a Medical Review Officer (MRO) deem the test a “negative” if the employee alleges the positive resulted from consuming a State licensed marijuana product?

ANSWER:

• No. Currently, there is no instance when the MRO could verify a laboratory-confirmed marijuana positive drug test result as “negative” when an employee claims the positive was caused by a State licensed marijuana product.
• Even after rescheduling, State-dispensed marijuana does not constitute an FDA-approved drug. Without FDA approval for a controlled substance, it cannot be prescribed.
• A “legitimate medical explanation” requires use of a legally prescribed controlled substance in compliance with Federal laws governing such a prescription. 49 CFR §§ 40.137(a); 40.141(b).
• Although the MRO may be presented with documentation such as State-issued medical marijuana cards, physician recommendations or certifications, or dispensary records or receipts, these documents do not satisfy part 40 requirements for a “legitimate medical explanation.”
• Marijuana use under State marijuana programs or other non-prescription sources do not qualify as a “legitimate medical explanation” under 49 CFR § 40.137(a). In addition, marijuana use is not compatible with safety-sensitive functions.

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