May 15th, 2024 | Sterling

Marijuana Essentials Webinar: Federal & State Activity

Estimated reading time: Approx. 8 minutes

Top takeaways: 

  • Traditional drug testing methods can’t actually determine impairment or psychoactivity of metabolites.
  • Employers should fully understand what modern drug testing technology can and can’t do, regardless of the specific type of drug test used.
  • Employers benefit by keeping in mind that drug testing is not a simple “one-and-done” area of the law. Drug test policies require continuous re-examination and consideration. 

Regarding marijuana drug testing for employment, the challenge for employers is keeping up with ever-changing drug screening regulations. What’s the current status of federal and state marijuana law? Specifically, what do these new laws mean for your drug testing program, and how can you help ensure adherence to compliance and workplace safety when setting policy?

For our first blog post in this series, we’ll examine the basics of marijuana drug testing, and then discuss recent federal and state law updates set to affect employers’ drug testing programs. You’ll leave with an understanding of how new laws might impact your workplace drug testing programs, and also how to help create a company culture built on trust and safety.

Sterling addressed this topic in our compliance webinar on February 28, titled “Marijuana Essentials: A Compliance Update.” Led by Angela Preston, Associate General Counsel, Corporate Ethics and Compliance for Sterling, and Shawn O’Neil, Compliance and Chief Privacy Officer for Vault Workforce Screening, A Sterling Company. Our speakers shared their expertise on marijuana testing compliance, which once again proved to be a highly popular topic with our audience of HR professionals. Watch the webinar on-demand here.

“Employers benefit by keeping in mind that drug testing is not a simple ‘one-and-done’ area of the law.” – Angela Preston 

During the live webinar, we asked our audience this question, and we’d like to know your answer too: 

Have you stopped testing for marijuana?

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In the live webinar, 16% of respondents said yes; 25% said yes, in certain states; 5% said not yet, but soon; and 54% said no. Clearly, more than half of our audience are maintaining their drug testing programs, which they should carefully examine in light of regulatory developments such as the ones we’ll cover here.

What Employers Need to Know About Marijuana Legislation

First and foremost, it’s important to establish a consistent set of requirements and standards for screening across your organization. However, you should also be sure to carefully implement these with an awareness of regional laws and best practices around the globe.

Shawn O’Neil began our webinar with a discussion of the current state of US marijuana legislation, with a tight focus on what employers need to know.

Currently, marijuana is listed as a Schedule I drug per the Controlled Substances Act. This means that marijuana is regarded as a drug that has no current medical use, or which has a high potential of abuse. However, there’s recently been federal activity aimed at potentially rescheduling marijuana.

Shawn emphasizes the importance of understanding what today’s drug testing technology can — and can’t — do. That knowledge will apply whether your program uses a urine test, fluid test, hair test, or any other drug test conducted to prove whether or not someone has used marijuana.

What CAN drug tests do?

A drug test can tell that the donor providing the specimen has at one time used (or has a history of use) of the substance being tested as part of your testing panel.

What CAN'T drug tests do?
What CAN'T drug tests do?

What CAN’T drug tests do?

A drug test cannot detect impairment. This challenge becomes an issue in many of the changing state marijuana laws.

While a drug test can detect if someone has used a specific drug or chemical, it cannot detect (at the time the test takes place) that the person tested is impaired by that drug. Unlike an alcohol breathalyzer, you can’t detect someone’s level of impairment from using marijuana.

How IS impairment defined, then?

“Impairment” is an important concept for employers with drug testing programs. Regarding marijuana, THC impairment can be impacted by a number of factors, including: 

  • The potency of the THC consumed (measured by its “delta” rating)
  • How it was consumed
  • The amount consumed
  • The person’s individual metabolism 

Note that if a person experiences a high from marijuana, that impairment can last for hours after intoxication. However, the challenge for employers testing for THC is that there is (as yet) no way to actually detect THC impairment.

Additionally, the way someone uses marijuana can have dramatic impacts on its specific effect on them, up to and including impairment. This includes inhalation, oral ingestion, and sublingual absorption. These differences pose further challenges to employers when drug testing, especially when you consider laws mentioning impairment and attempting to measure it.

Federal Activity

Angela Preston gave an overview of recent federal and state legislative updates focused on marijuana testing, highlighting important considerations for employers, including: 

  • The location (or locations) you’re hiring within
  • Where exactly your locations are
  • Where your employees are located
  • Recent legislative developments, including those at the federal level 

She discussed the October 2022 review of whether marijuana should remain a Schedule I drug; the August 2023 recommendation by Health and Human Services (HHS) to Drug Enforcement Agency (DEA) to reclassify marijuana to a Schedule III drug; and the January 2024 update in which the DEA told lawmakers it’s conducting a review of the HHS recommendations. Watch for Angela’s insights: 

Note that even if marijuana is reclassified, that fact in itself won’t result in an immediate change; not without additional updates to regulation. 

State Activity

Angela moved on to highlight an important reminder for employers with marijuana drug testing programs: generally speaking, state marijuana laws do not impact your ability to test under federal law or regulatory authority, nor do they require employers to allow possession or use or distribution or impairment while at work. Listen to what she had to say:

Angela now gave a quick rundown of state laws impacting employers’ ability to test for marijuana impairment. It’s important to note that many of these laws specify when employers do and do not have the right to test employees.

Watch the full webinar for a rundown of state laws impacting employers’ ability to test for marijuana impairment, including Kentucky, Minnesota, and Maine, along with additional considerations posed by California and Washington.

The Viability of Oral Fluid Drug Testing

Shawn shared with webinar attendees a convenient method of drug testing many employers have adopted: oral fluid drug testing.

Here’s the current state of drug testing regarding urine vs. oral fluid collection: 

  • Urine drug testing is currently the go-to drug test for most employers testing for THC.
  • However, urine drug testing can only detect metabolites of marijuana.
  • In contrast, oral fluid drug tests can actually test for the parent drug THC before the body metabolizes it. 

“Examining the language of the law, we observe that employers can’t make hiring decisions based on drug tests which use non-psychoactive metabolites. On the other hand, oral fluid drug tests don’t examine metabolites; they detect whether or not the parent drug is still present in the body.” — Shawn O’Neil

This is a major reason why West Coast employers are considering using oral fluid drug testing to comply with new laws such as those in California and Washington.

Ways to Help Strengthen Your Drug-Testing Program

Employers who stay knowledgeable about these marijuana drug law updates stand to benefit from better-informed policies, programs, and safer workplaces. During the webinar, Angela and Shawn presented additional valuable compliance information, making for a highly-informative discussion. For the full discussion and more updates, be sure to watch the entire webinar on-demand here.

Now that you’re equipped with a deeper understanding of how new laws might impact your drug & health screening programs, what are next steps?

Learn action items to help your organization establish compliant drug test procedures in our other blog from the webinar, “3 Steps to Strengthen Your Drug Testing Program.”

Sterling’s Compliance Expertise in Action

Want to stay in the know on future compliance webinars and other compliance content? Sterling’s global compliance team provides regular guidance and updates on the complex, evolving global regulatory landscape to help keep you informed. Sign up for our Compliance Roundup newsletter here.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.