The legalization of marijuana in some states, both medically and recreationally, is complicating the drug testing process. Jackson Lewis P.C. attorney Kathryn Russo suggests that companies review their drug testing policies as they apply to both medical and recreational marijuana. Keep in mind that under the federal Controlled Substances Act, marijuana is illegal, and the U.S. Department of Transportation's Drug and Alcohol Testing Regulations (49 CFR Part 40) do not authorize medical marijuana under state law to be a valid medical explanation for a transportation employee's positive drug test result.
Russo adds that the firm will need to determine if they will follow federal law when it comes to positive drug tests, checking to see if the firm is a recipient of any federal funds or licenses or subject to the federal Drug-Free Workplace Act. She explains that when it comes to drivers, you are subject to federally regulated safety standards and therefore cannot accommodate medical marijuana or tolerate recreational marijuana, even if it is legal in the state you are in.
Ultimately, drug testing is about safety, and you must weigh whether to comply with state medical and recreational marijuana laws against the risk of someone working who has used marijuana either medically or recreationally. Russo notes there is very little case law when it comes to marijuana and positive drug tests. If you choose to follow federal law, she cautions that you may run the risk of being your state's test case for medical marijuana accommodations.