If an employee informs the employer that they are using a CBD product, what is the employers responsibility if that employee is in a safety-sensitive position?
The employer’s responsibility is to explain that there is no exception (under DOT regulations) for the use of any product that presents as THC metabolites and exceeds set thresholds on a DOT drug screen. If it is non-DOT, they should refer to the company policy. If the policy accepts CBD oil, then that should be communicated.
Do different testing policies for different clients have different saturation levels as a threshold for positive vs. negative tests?
YES - All drug testing policies have a testing “panel.” Testing panels consist of substances and level thresholds (limit of detection). DISA offers policies with customized panels, in addition to policies that require standard/regulated panels. (Please note, all DOT and some safety-sensitive, non-DOT drug testing programs have mandatory testing panels)
In Arizona can I fire an employee for testing positive for marijuana?
A recent case involving a major retail chain fired an Arizona employee for testing positive for marijuana despite the fact that they possessed a medical marijuana card and disclosed that information prior to taking a urinalysis. The company claimed that they were protected under the state’s Drug Testing of Employees Act, but the judge ruled that the company couldn’t prove if the employee was impaired at work. It’s advisable that employers do not terminate Arizona employees who hold a valid medical marijuana card based solely off of a positive marijuana drug test result. Companies’ should ensure that they provide employee education and reasonable suspicion training for managers, implement a medical disclosure policy, and establish a documentation process. If a terminated employee later sues for wrongful termination, this documentation and an established process, could be a deciding factor in your case.
Can I hire someone with an invalid result?
An invalid test result is acceptable except in the following cases:
- The employer needs a negative test result (DOT and Consortium Pre-Employment, Return-to-Duty)
- The MRO has instructed a recollection and/or medical evaluation
Return-to-Duty and SAP referrals are relevant to non-negative results so, if an employee is restricted due to an invalid test result that employee should not be subject to an RTD program (unless the client’s corporate policy indicates otherwise).