Marijuana and MROs: What Employers Need to Know

For safety-sensitive companies, navigating the drug screening process requires more than just finding the right testing provider: it means adhering to federal regulations and state laws to protect your organization and your workforce. The legal landscape of medical and recreational marijuana in particular is rapidly changing, and regulatory compliance to all applicable mandates is (for a whole host of reasons) non-negotiable.  

In a recent webinar entitled “Marijuana and MROs: What Employers Need to Know,” Faye Caldwell of Caldwell Everson PLLC hosted a session for DISA Global Solutions to break down the essential responsibilities for employers.

The Role and Limits of the Medical Review Officer

A Medical Review Officer (MRO) plays a specific, highly regulated part in the drug screening process. Specifically, MROs make medical interpretations of laboratory-reported positive test outcomes.

In the event of a positive test, MROs utilize their medical expertise to determine if there is a legitimate medical explanation for the laboratory findings; this is the primary role of an MRO in reviewing a laboratory confirmed positive result.  

However, there are explicitly defined limitations to what an MRO can do. For instance: MROs do not offer legal advice to employers, nor do they act as legal counsel. Furthermore, they do not order the test panels or determine the applicability of various state laws.

MROs also do not retain information regarding an employer's specific workforce, individual job duties, or specific state exemptions. As attorney Caldwell noted in the webinar, MROs are advised to "stay in their lane."

Federal vs. Non-Federal Drug Testing

For safety-sensitive roles, applicants should be aware that they consent to, and are evaluated on, two primary types of drug tests: federal and/or non-federal. And in the case of a positive marijuana test, HR teams need to understand the difference.  

Federally, marijuana remains classified as a Schedule I controlled substance (for now). This classification means that the substance has no legally accepted medical use as far as federal policy is concerned. The only scenario in which an MRO will verify a lab confirmed marijuana positive as negative (with a safety concern), is if the employee was prescribed marinol (Schedule III) or epidiolex (Schedule V) which are FDA approved synthetic marijuana and filled at a pharmacy, not a dispensary

Therefore, because marijuana is a Schedule I drug and is not approved by the FDA, a positive laboratory result equals a failed federal drug test. And even though 40 states currently allow for the use of medical marijuana, these state-level marijuana laws do not provide a legitimate medical explanation for a positive federal drug test result.  

In other words, state medical cards do not override federal drug testing regulations; a positive federal test is a failed federal test, regardless of the applicant’s state of residence.

For non-federal regulated drug tests, however, employers generally have more flexibility. As far as marijuana is concerned in non-federal testing, employers usually have the freedom to choose a testing methodology and policy framework that aligns with their specific job descriptions and state laws.

Employer Responsibilities and Company Policy

Even in cases where an employee tests positive for marijuana on a non-federal test, if a specific state law provides employment protections for marijuana users, employers cannot take adverse action against that employee. This restriction holds true even if their own internal corporate policies demand disciplinary action.

In other words, as attorney Caldwell succinctly put it, “company policy never trumps the law.” Legal compliance will always supersede internal company guidelines.

That said, employers are generally permitted to take certain investigative steps, such as asking for an employee's medical marijuana card, verifying if the submitted card is valid, and checking its expiration date.

However, employers should not inquire about the underlying medical condition requiring the card, as that information is protected under regulations like HIPAA and should remain strictly confidential.

The Future: Potential Rescheduling of Marijuana

There is ongoing, active discussion about potentially rescheduling marijuana at the federal level. If marijuana eventually transitions to become a Schedule III drug, it will still take a long time for any operational impact on employer drug testing programs to occur.

Ultimately, navigating workplace drug testing in the era of legal marijuana requires vigilance and a continual stream of current information. By keeping medical and personnel files separate, staying updated on shifting legislation, and leaning on expert compliance partners, organizations can successfully protect both their workforce safety and their legal standing.

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How DISA Can Help

At DISA Global Solutions, we understand the complexities of managing compliance and safety in a rapidly changing legislative environment. DISA’s comprehensive services are designed to support employers in their journey toward full regulatory compliance and operational efficiency when navigating state and federal drug testing laws.  

Through our advanced occupational health screening programs and robust policy development articles, we help you keep your testing protocols aligned with current mandates.  

With DISA's comprehensive support, you can confidently navigate the complexities of employee screening and protect your business from liability. Contact us today to learn more about how we can help your organization achieve compliance and operational excellence.