A New Era of Drug Testing Practices - Marijuana Reclassification May Affect Employers And Law Enforcement

Episode Transcript

Speaker 1 (00:01):
From the WA and M Studio on the campus of
Florida A and M University.

Speaker 2 (00:04):
This is Maryforum Radio, a weekly conversation on the education
and research of the medical marijuana being conducted to at BAMMUTI. Hi,
I'm Heidi Outway, your host for this conversation on cannabis
virtual Form, brought to you by the Medical Marijuana Education
and Research Initiative at Florida and M University. In this conversation,

(00:26):
we're talking about changes in drug testing after the recent
reclassification of medical marijuana and how this may affect employers, safety,
sensitive jobs, and law enforcement. So let's talk and learn
about this subject with our guests. Angela Garrison is the
President and Chief operating Officer of Tomo Drug Testing, a

(00:48):
Missouri based drug and alcohol testing company. She has more
than fifteen years of experience in the drug testing and
workplace compliance industry with expertise and operations, product management, marketing,
and client solutions. She brings a broad perspective on how
employers across the country are navigating evolving cannabis policies, workplace

(01:11):
safety concerns, and changes in drug testing practices. Our next
guest is Shana Hamilton, who works with Angela and serves
as Vice President of Client Advocacy at Tomo Drug Testing.
She has more than nineteen years of experience in the
drug testing industry and works closely with employers and organizations

(01:33):
to develop and manage effective testing programs and navigate changing
workplace regulations and compliance requirements. She is also a certified
professional collector and certified breath alcohol technician. Thank you both
for being our guests today. To everyone watching, please share

(01:54):
the link on this forum on your social media channel
so others can learn about this topic. We also want
to tell you what you think of this forum. By
completing the survey posted on Mary's social media pages, your
name will be entered into a drawing in August twenty
twenty six to win a one hundred dollars gift card
provided by one of Mary's partners. Now, let's start this

(02:17):
conversation on cannabis. In April twenty twenty six, the US
Department of Justice announced the rescheduling of FDA approved and
state licensed medical marijuana products from Schedule one to Schedule three,
marking a major shift in federal cannabis policy. Our speakers
here are experts in drug testing and service. Third party

(02:39):
administrators working with employers across several states, including those with
legal medical marijuana programs like Florida's. So, Angela, I'm going
to come to you. What's the biggest concerns you're hearing
from employers about the federal rescheduling of medical marijuana.

Speaker 3 (02:57):
Well, I think one of the things we hear a
lot is is there's just a lot of confusion. And
I think there's always been confusion around marijuana legalization because
it's been at the state level, and so it's really
hard to navigate state to state.

Speaker 4 (03:11):
If I have an employer that lives in one state
but works.

Speaker 3 (03:14):
In another, if I am an employee, or if I'm
an employer who has employees in multiple states, what does
that look like? And so, now that we're introducing federal
legalization or rescheduling of marijuana, the biggest concern and the
biggest concern I think we all should have is that
within this rescheduling there needs to be a safety carve out,

(03:34):
because right now, if it moves forward the way it
is currently, is that anyone who is covered by dot
SO any Department of transportation.

Speaker 4 (03:44):
So this is your airline pilots, your railroad workers, you're
over the road.

Speaker 3 (03:47):
Truckers, school bus drivers, they would instantly be exempt from
being tested for marijuana. And so that is something that
the organizations that we work with at the National are
really advocating hard to ensure that our lawmakers understand that
there needs to be a safety carve out and that

(04:08):
is a big concern for a lot of employers.

Speaker 2 (04:10):
Yeah, Shanna, did you want to add something to that.

Speaker 1 (04:13):
No, I think Angela hit that right on the head.

Speaker 2 (04:16):
Well, when you talked about the safety sensitive positions, it
makes me think about what about the blue collar jobs
that may be in those industries or other industries, because
I would think that there would be a difference, right.

Speaker 4 (04:30):
Right, There is a difference. So they're the ones that
are federally covered by DOT.

Speaker 3 (04:35):
So if you hold a CDL, for example, to do
your work, and then we have a lot of employers
who work in bolths, so maybe one day you are
covered by you're doing a job that you're covered by
your CDL, and then other times you are not doing.

Speaker 4 (04:50):
A safety sensitive position.

Speaker 3 (04:52):
But I think it's important that employers, regardless of whether
or not the employee is covered by DOT, is looking
at those specific jobs. Is this a job where the
individual needs to be in a constant state of alertness
to perform those duties safely, and so it's really everybody
needs to be looking at their workforce.

Speaker 2 (05:13):
Yeah, so that brings me to my question for Shana
Lorda's medical marijuana program now serves more than nine hundred
thousand registered patients. So, as employers listen to this show,
who may or may not be in safety sensitive industries,
what should they be considering now that they're with their
workplace drug testing policies.

Speaker 1 (05:33):
Well, I think they should shift their thinking from how
do we handle marijuana to how do we keep our
workplace safe? I think that's the key to all of
this is really safety in the workplace. And as Angela mentioned,
I think every employer should start by looking at the
types of positions they have. A policy for an office
based worker maybe very different from a policy for someone

(05:54):
who drives or operates heavy equipment, even cares for patients
or works with the public. The policy should reflect those differences.
And one of the things that we stress is that
policies should be current, clearly written, communicated to employees. The
employees really need to know all the ins and outs
of the drug testing policy. So they know what's in

(06:15):
relation and what's not and then consistently enforce so those
all become incredibly important if there's ever anything that's taken
to court. And then I'd also encourage employers not to
think about the drug testing policy itself as the entire program,
but training supervisors, supervisor reasonable suspicion recognition, training, educating employees

(06:41):
recognizing impairment, how are your you know, those supervisors need
to have that interaction with their employees so they know
what their regular behavior is and can recognize if they're impaired.
And then also creating a culture where people feel comfortable
asking for help. I would imagine that some employers would
be shocked at the number of employees that they have

(07:02):
that are currently using various substances that may want help,
but they're they're too afraid to bring it up or
ask for it.

Speaker 2 (07:12):
And what would be the pause from that employee is
it because they may lose their job?

Speaker 1 (07:18):
Is that that could be one of those things that
they are pausing because they're afraid. They're afraid of Hey,
if I admit this, am I going to be able
to admit this to my employer? And does my employer
have an EAP so that they could get help, and
what would the repercussions be of bringing this to light?

(07:39):
Is the employer willing to you know, invest in the
employee and provide them with counseling and help for their
substance use?

Speaker 2 (07:49):
Okay? And what's an you said, a E A P.
What is that?

Speaker 4 (07:54):
An employee assistance program?

Speaker 2 (07:57):
Okay, gotcha?

Speaker 4 (07:58):
Yeah, learner, And I know people.

Speaker 3 (08:01):
Ours, our insurance provides an EAP counseling services, grief counseling,
substance abuse counseling, those types of things.

Speaker 2 (08:09):
Yeah, so it sounds to me like, you know, if
an employee is now hearing this show, they're probably a
little confused about what's happening and what are their best steps.
So is this something that they would go to HR
about or you know, you know, I'm a business owner,
so I'm just curious what would an employer listening to

(08:30):
this or business owner who would they go to to
talk through this within their company? HR or EAP?

Speaker 3 (08:37):
Wish your recommendations all the Yeah, probably a little bit
of all the above. I think start with HR, because
this is all going to start with your employee Handbook,
your employee, your policies and generally those are done with
your HR department. If the organization is long or large
enough and you have in house counsel there probably should

(08:58):
be involved in this as well. But then again I
would also make sure that as you're writing the policy,
what goes hand in hand with this is also the
job descriptions. So every job description needs to be looked
at to determine the level of safety sensitive that those
jobs are. So that's probably you're getting safety managers involved
or just managers at every department level so you can

(09:19):
fully understand if you are in the HR department what
those jobs entail.

Speaker 2 (09:25):
Shannon, did you want to answer that?

Speaker 1 (09:27):
Yeah, So there are also policy consultants available that can
assist with helping to write policies for those employers that
may not have an HR department large enough to know
the ins and outs of all of the state regulations,
or if there are employers that have multiple employees in
multiple states, as Angela mentioned before, those can be very

(09:48):
different state to state, So a policy consultant is often
a good way to go when you're writing these policies.

Speaker 2 (09:56):
Yeah, and that goes into right well into my next question,
and is that in Florida, employers may provide reasonable accommodations
for their employees who are medical marijuana patients, but there
are exceptions, particularly for safety sensitive positions, and workplace is
subject to federal regulations. So with all the rescheduling that's

(10:18):
happening at the federal level, does that change how employers
should approach medical marijuana accommodation requests.

Speaker 4 (10:26):
I don't think so.

Speaker 3 (10:27):
I mean not yet, because again, nothing has happened. The
announcement was made in April, and now you know, nothing
yet has happened. But I do think, and again I
do want to say, I'm not an attorney, not labor law.

Speaker 4 (10:41):
I just so definitely consult. I will share what I know.

Speaker 3 (10:46):
You know, I think the biggest mistake when we talk
about ADA is that you don't have to compromise workplace
safety for the accommodation, right, so you I think it's
very important that employers continue you separate the medical condition
and the employees marijuana use. So if someone has asked
for an ADA for reasonable accommodation, and you enter into

(11:08):
that interactive process.

Speaker 4 (11:10):
With them, what is the disability?

Speaker 3 (11:13):
And then if you are determining through that interactive process
that marijuana is the accommodation and you approve it, you
can still put guardrails around that in terms of you
cannot come to work. You know, you cannot use right
before you come to work and only use after hours.
You're still subject to drug testing. You know, you can

(11:34):
still put those in place. But I would really focus
on what is the disability that we are trying to accommodate.

Speaker 2 (11:43):
Yeah, yeah, and so and Shannon, did you want to
add to that? Yeah, okay, So from the employer side,
if they give the accommodation, can they still discipline an
employee in some of the scenarios that you just brought up,
like you know, they tested positive or if they came
to work.

Speaker 3 (12:02):
High Absolutely granting the accommodation, in my opinion, is not
giving them an excuse or saying we have to look.

Speaker 4 (12:11):
The other way.

Speaker 3 (12:12):
If they believe, through reasonable supervisor, reasonable suspicion, through then
drug testing, that that person is impaired at work, you
know you cannot you don't have to excuse that, especially
if they are in a safety sensitive role.

Speaker 4 (12:28):
I mean, think about other medication.

Speaker 3 (12:30):
If someone is on an antidepressant, if someone is on
a narcotic for chronic pain, that they have it does
not mean that they get to use that in a
manner that would impede the way that they work.

Speaker 4 (12:47):
And so we can think about it in the same way.

Speaker 2 (12:49):
Yeah. So so you know, looking at looking at it
from the other side, the the you know, the people
that this employee is working with. Who does the employer
have to disclose to the manager's key staff that they
gave that employee accommodation to use medical marijuana.

Speaker 3 (13:09):
Generally no, but this is very much, in my opinion,
going to be case by case. So you need to
make sure that that person's direct supervisor or that person's
direct manager.

Speaker 4 (13:19):
Knows what's happening.

Speaker 3 (13:20):
So, for example, if an employee in one of my
departments is given an accommodation and that accommodation is is
they can't work more than four hours a day, I
need to tell their manager who makes their schedule, they
were given an accommodation and they can only work four
hours a day. What I don't have to disclose is

(13:41):
why I don't have to tell them why they were
given the accommodation, what the disability is. That's where we
really get into medical information that speaking should be kept private.
You have to communicate the guardrails around what that accommodation
is with the person who manages them. There's a scheduling department,

(14:01):
you know, the people that need to know. But again,
it's more about what you have the accommodation is and
not the condition.

Speaker 2 (14:08):
Mm hmm, Shanna, did you want to add to that?

Speaker 1 (14:11):
No, I think Angela's spot on when she talks about,
you know, what we're disclosing to the supervisors and what
they need to know in these instances.

Speaker 2 (14:21):
Yeah, well, I would have to imagine that the employee
may be concerned about disclosing this information. Right, So, if
an employee is listening to this program, they have a
legal medical marijuana card, they only use their cannabis product
at home, what advice would you give them if they say, well,
maybe I should tell my employer and request an accommodation.

Speaker 3 (14:44):
You know, this one is tricky because why, you know,
what are you why are you telling them so? Do
you have an accommodation? Do you have a disability that
you feel like needs to be accommodated. My thing is
is that regardless of what the accommodation is going to be,
as an employee, if you do have a disability that
is impeding your ability to perform your work, then yes,

(15:07):
you should disclose and enter into the interactive process with
your employer so you all can find an accommodation that works,
so they're not getting frustrated with you for a disability
that you have not disclosed to them. But then about
the marijuana use itself, this is really important that you
need to look at the policy of your workplace because again,

(15:30):
marijuana testing, and we've not really got into that yet,
but marijuana testing right now is only looking at past use.
We do not have testing technology that can tell us
if someone the level like a breath alcohol test for
marijuana does not exist.

Speaker 4 (15:46):
You know, we can get a be we can get.

Speaker 3 (15:48):
A breath alcohol level right now, what is that level
that does not exist for marijuana?

Speaker 4 (15:54):
And so you're always looking at past use.

Speaker 3 (15:56):
So in this scenario, if you say they only use
at home, they don't won't come to work high, that's great,
They're still probably going to test positive on a workplace
r protest. So they need to look very carefully at
their company's policy to make sure that that medical marijuana
use at home is not still in violation of their

(16:18):
company policy.

Speaker 2 (16:19):
So with this in mind and employers who are you know, again,
we have a good portion of the nation's states they
allow marijuana use, So I would have to think that
employers would be changing their policies because, like you said,

(16:40):
it stays in your marijuana stays in your body longer.
So that's an education point for those who are listening.
If you're own business or you're an employer, the person
could have taken it days before, but it's still in
the body, and then how do they and if they
aren't coming to work impaired. Are you all seeing a
shift in employers and businesses that are changing their policies
because we're learning so much about how cannabis impacts the body.

(17:04):
Does that make sense? You know what? You know what
I mean by that?

Speaker 1 (17:07):
Yeah, I think one of like Angela mentioned, one of
the most important things that employers can do is to
make sure their policy accurately describes what the test can
and can't tell them. So, as you mentioned, one of
the big misconceptions is believing that a marijuana test can
tell you whether someone's impaired, and it just doesn't do that.

(17:27):
The drug test tells presence in the system that marijuana
was used sometime within the testing window. It doesn't tell
you whether the employee was impaired at eight fifteen am
when an accident occurred. And that's really an important distinction
that employers need to understand, and that's why their policy
language matters needs to clearly explain when testing occurs, what

(17:52):
type of testing is performed, what happens if there's a
positive result, and then what supervisors should document if they
observe concern behavior. Going back to a comment that I
had made earlier about supervisor reasonable suspicion training and also
the supervisors knowing their employees being out there with them

(18:12):
and knowing their normal behavior, because sometimes symptoms are still
considered the gold standard for identifying impairment. A trained supervisor
that knows their employees normal behavior should be able to
pick up on if an employee comes to work compaired
and their behavior is different, or they're observing concerning behavior

(18:33):
that's just out of the norm for that employee. And
then finally, employers should really review their policy regularly make
sure it matches current state laws. As we've seen, all
of these state laws are changing or evolving, and so
they want to make sure their policy matches those state laws.
The federal requirements of course, and then the testing program

(18:54):
that they're administering.

Speaker 2 (18:56):
So when we were prepping for the show, you all
mentioned some companies hire an MRO to help them with
workplace drug testing. Can you tell us about this role
and how they can insist employers who may be listening
and saying I need help.

Speaker 3 (19:12):
Yes, So, an MRO stands for a medical review officer,
and so this is a physician that will determine if
there's a valid medical reason that a drug test should
be positive. So, for example, if I'm working in my
yard this weekend, I hurt my back, I go to
urgent care. They might give me a muscle relaxer and
some hydrocodone for the pain.

Speaker 4 (19:32):
Let's just say, a narcotic for the pain.

Speaker 3 (19:34):
I'm going to take that medication legally, right, I was
prescribed that medication by a doctor, and I'm taking it
as it was prescribed. But then if four or five
days later, I'm pulled for random at my company, I'm.

Speaker 4 (19:45):
Going to test positive for that substance.

Speaker 3 (19:49):
And so what my company does is that anytime there's
a laboratory positive, and this is required for all dots,
So any federally mandated test goes through the MRO. Whether
it is laboratory negative or positive, they all through the
MRO for non DOT we feel best practices for companies
is all of your laboratory positives should be sent to

(20:12):
an MRO to review. And so when that MRO gets
my positive drug screen, they're gonna call me and they're
gonna ask me, Angela, is that are you on any
medication that.

Speaker 4 (20:22):
Would cause this drug test to be positive.

Speaker 3 (20:24):
I'm gonna tell them, yes, I hurt my back, this
is what I'm taking. So then they're gonna ask me
to provide a lot of.

Speaker 4 (20:29):
Information my physician.

Speaker 3 (20:33):
Where I got the medication, and then they're going to
do their homework and they're going to determine that, yes,
my prescription is valid.

Speaker 4 (20:40):
So then what they will do, because my test is.

Speaker 3 (20:44):
They will overturn that and the final test result will
actually be a negative drug test.

Speaker 4 (20:51):
My result will be negative.

Speaker 3 (20:53):
Our MRO issues them with a test like that when
it is an opiate, they will enter it with.

Speaker 4 (20:59):
A state safety warning.

Speaker 3 (21:01):
Basically the employer heads up, hey, this individual, while the
test is negative, this individual is on a medication that
you Depending on the work they do, you might want
to consider reassigning them while they're on this medication. Again,
cannot affirm that that is best practice for all Morrows.
I would definitely ask your morrow. But the way that

(21:23):
individuals can legally take medication medication that they need, but
then also be in a drug testing policy or a
drug testing program and not free percussions of failed drug tests.

Speaker 2 (21:36):
Well, Shana, did you want to add to that?

Speaker 1 (21:38):
No, I think it's I mean, yes, just a little bit.
I think it's to also note that as it stands
right now, MRO is that you know, you may have
an employee that test positive for marijuana and they say, hey,
I've got a medical marijuana card and they present that
to the MRO. That is not going to fall under

(21:59):
that same process the Angela just described. The MRO is
not going to verify the medical marijuana card. To be honest,
someone could get that at any place, you know, a
marijuana a store that sells marijuana. They can. There's just
not a way at this point to verify that. And

(22:20):
it's not actually a prescription. So the MRO is going
to that test will continue to show as a positive
test for marijuana, and then the will make a notation
that they presented a medical marijuana card, but the result
would not show negative as it would if it was
a prescribed medication.

Speaker 2 (22:41):
Yeah, So I'm thinking about, like, what would happen if
so a company, someone takes a drug test, it tests positive,
but they can't prove that the employee was, you know,
high or impaired at work. Could a company have you know,
have repercussions in the workplace if they were to let

(23:05):
go of that employee or discipline that employee for using cannabis? Like,
is there a legal risk if they did that?

Speaker 1 (23:16):
Yes?

Speaker 4 (23:16):
And no.

Speaker 3 (23:17):
I think as long as what Shana was talking about earlier,
the company policy has been provided, it has been acknowledged
by the employee, and that that means that they saw
it and that they did not ask questions about it.

Speaker 4 (23:34):
So, for example, for us.

Speaker 3 (23:36):
We make our employees when we're onboarding them, they have
to initial every page of our handbook that includes the
drug free workplace policy of our company, and that way
we know there's the signature or there's the initials at
the bottom of that page, the day and the time
at which they they initialed that they read through that

(23:57):
policy and that they understood that they were in a
random drug testing program. Here are the drugs that we
are testing for. List out the drugs that you are
testing for. So we list our entire panel that we
test for, which includes marijuana. And then here's the repercussions
if you have a failed drug test. And so as

(24:18):
long as those are followed, then again use an MRO,
because again, someone could test positive for something besides marijuana. Right,
you're testing for other things. There's other drugs they can
test positive for as well. So use the MRO and
then you can follow your policy.

Speaker 2 (24:35):
Yeah, so we've made it pretty clear that these tests
are doesn't give the results in real time. So are
you all seeing changes in your industry with all the
marijuana laws changing at the federal level to create these
real time drug testings for marijuana impairment and other drugs?

(24:57):
Is that on the horizon? Is there something ofvailable now?

Speaker 3 (25:02):
I do know there's technology being worked on. I do
know there's a lot of different whether that's in breadth
oral fluid testing, but nothing really on the market. Nothing,
Here's what I'll say, nothing that we're using as a
drug testing company. That's what I will say. We are

(25:22):
not using anything if it is on the market. Nothing
that we are using currently.

Speaker 2 (25:28):
Right, and I think you all have a you all
have a drug screening that could be done remotely on video,
Is that right?

Speaker 1 (25:34):
Yes, yep, we do have a you know, an opportunity
for a virtual oral fluid collection that's available, and that
sometimes is you know, employers are always looking, especially if
they have a remote workforce. Now since COVID often people
work from home, it's more difficult. You don't schedule on
site brand of drug testing, and so a virtual oral

(25:57):
fluid collection gives that access stability. But basically it's you know,
a donor would connect with a trained collector through a
secure video appointment. The collector verifies their identity and then
walks them through every step of the process. There are
some very specific guidelines that must be followed. For example,

(26:19):
we have to be able to see their hands at
all times, you know, you check to make sure they
don't have anything in their mouth, that the package they've
received is still in TAC. But it's really helpful for
like I said, those remote employees, rural communities, and I
also think it would be one of those things beneficial
potentially for court programs and probation if they have clients

(26:43):
that are remote that live in a very rural area
or you know, or hours away from a collection site.

Speaker 2 (26:50):
Yeah. Yeah, So as we wrap up this really informative
call and I learned so much again today in our conversation.
Can you share some clothes thoughts with our listeners, either
for the employees that are listening or for the employers
that are listening.

Speaker 1 (27:07):
Sorry with you, Shana, Yes, so I would say, you know,
we get a lot of questions about employers removing marijuana
from their policy using that strategy or removing it from
pre employment testing to use that strategy to get a
bigger talent pool. And I think that is an option,

(27:29):
but there are other options available, such as recovery friendly
workplaces and second chance hiring. Many people graduating from treatment
courts or in it that are justice involved have gone
months or years going through and providing that accountability through
treatment court, whether that's you know, accountability through for drug testing,

(27:56):
through court appearances, treatment, and those individuals often become incredibly
loyal employees because someone's given them a chance. So employment,
you know, is one of the strongest predictors of success
in long term recovery. So rather than simply removing marijuana
from a t from testing altogether related to increasing a

(28:18):
talent pool. I would encourage, you know, looking at creative
and thoughtful hiring strategies such as recovery friendly and second
chance employment.

Speaker 2 (28:29):
Yeah, Angela, you.

Speaker 3 (28:31):
Know, I think what we've seen over the years is
that public opinion of marijuana has far outpaced the science
of what we can test for, and I don't know
that it's ever going to catch up. Just the way
we know our bodies metabolize marijuana, I'm not sure that
we will ever get there. I know there's groups trying to,
and so this is always going to be the situation

(28:53):
that we're in. But I think it's important that employers
look at the work that they do make sure they're
staying up today with the policy. I would say, if
you have or if you are just a citizen, it's
important that we all understand the rescheduling right now without
the safety carve out.

Speaker 4 (29:10):
If you fly on an airplane, if your kiddo rides
a school bus, this should.

Speaker 1 (29:14):
Matter to you.

Speaker 3 (29:15):
And so I just really hope our lawmakers are educated
about what that means and what not having a safety
carve out would mean for all of those people that
we interact with. We interact with these individuals every day.
Whether you pass trucks on the street or you put
your kid on a school bus, you're interacting with an

(29:36):
individual that's currently federally mandated to drug test and drug
test for marijuana. And we want to ensure that that continues.
But outside of that, monitor your state laws. They're always changing.
Make sure your policy is up to date, and then
make sure your drug testing program is matching your policy,
because if you're not enforcing the policy, your employees will know.

Speaker 4 (29:57):
That, and so make sure there's the enforcement on the
back sid.

Speaker 2 (30:00):
Yeah. Wow, great conversation today. So Angela and Shana, thank
you so much for being guests on our Conversations on
Cannabis virtual form brought to you by the Medical Marijuana
Education and Research Initiative at Florida and M University. Thank
you to everyone watching this program. Tell us what you
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(30:23):
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a drawing in August twenty twenty six to win a
one hundred dollars gift card provided by one of Mary's partners.
Stay Connected with Fam you Mary to access educational information
and resources about legal medical cannabis use and the consequences
of a legal marijuana use in Florida. You can follow

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them on social media or visit the Fam you Mary website.
We also want to encourage you to go to the
Florida Department of Health Office of Medical Marijuana Use website
to learn how to obtain a legal medical marijuana car
in the state of Florida. Thanks everyone. The views and
opinions of our invited guests are not necessarily the views

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and opinions of Florida Agricultural and Mechanical University or the
Medical Marijuana Education and Research Initiative.