By Richard Donze, DO, Medical Director, Penn Medicine
Rewind 31 years. I am a newly minted MRO discussing a drug screen result with a client and asking this seemingly simple question: “Why do you include alcohol in your (non-regulated) urine drug screen panel?” The somewhat bemused employer representative responds as if the question is not only simple but one whose answer is obvious: “Well, to find out if the person drinks, of course. Can’t have anyone drunk around here, especially with what we do and all the heavy machinery.
Why do you ask?” I respond (with apologies for stating what is obvious in 2021 but not so much in 1990): “Well, for starters, alcohol consumption is legal; its presence in urine may reflect something the donor did safely and responsibly (and legally) the night before the test; and finally, it doesn’t necessarily correlate with impairment. But then again, neither does the presence of marijuana cocaine or methamphetamine necessarily correlate with impairment, but we measure them because they are not supposed to be there without medical authorization, or in the case of PCP/phencyclidine, never at all, because there is no medical reason to use this illegal substance. Alcohol is allowed to be there.
The result may tell you nothing. “The client, still bemused but now even a little angry, responds: “So what do you suggest we do?” And I: “Remove it from your panel.” My question in 2021 is whether Occupational Medicine providers now need to proactively have those same conversations with employers about marijuana in states where this substance has been legalized or at least medically decriminalized. My unsolicited advice is that we should, or risk looking like we are the ones behind the times because some of our clients have already requested whacking the weed off their panels before we had a chance to even discuss it.
Prior to medical cannabis becoming available for certain conditions in February 2018 in Pennsylvania where I practice, marijuana-positive urine tests generally resulted in some disciplinary action at the workplace—either suspension and mandatory rehab or termination. As many of you know, applicants and employees would frequently lie about their use during the MRO interview (something we have traditionally done even for the non-regulated testing although technically not required), or claim it was secondhand exposure, but occasionally acknowledge that they formerly used it but hadn’t in years. A few honest souls would willingly admit that they actively used and say, essentially, “I was sloppy (or stupid) and you got me.” Since February 2018 the conversations can be very different. Some of the same lying and obfuscation still occur, but more and more I am finding people who have state-issued medical marijuana cards and provide the documentation at the time of urine collection.
Most surprisingly, many others without medical need freely admit that they use it recreationally, and add that they’ve already discussed it with their employers and everything is OK. “You got me” has turned into “It’s all good.” Conversations with federally regulated employers haven’t changed and of course, won’t as long as cannabis use remains illegal. Even without that regulatory requirement, some employers still voluntarily imitate the federal zero-tolerance approach unless the person has a documented medical marijuana card. But increasingly we have been seeing more flexible and perhaps even creative approaches to dealing with marijuana positives.
One company revealed their unwritten rules about which marijuana positives they let slide (maybe somebody in a clerical position), and which ones end up with discipline or withdrawing offers of hire (maybe somebody operating heavy equipment). Can’t wait to see what might happen if one of those decisions is ever challenged. But some companies are letting them all slide, arguing that given increasing recreational and medical use (for the latter, especially since anxiety disorders were added to Pennsylvania’s list of qualifying conditions in July 2019), it’s just not practical to reject cannabis users and still expect to consistently hire qualified individuals—especially if their target applicant demographic tends to be individuals in their 20s and 30s.
As I say, a few of these companies have actually taken the next logical step to avoid running afoul of their own HR policies and asking us to remove marijuana from their urine drug test panels. It almost seems as if the medical decriminalization of marijuana use in my state has created a more generally permissive attitude among employers and they are already treating it like alcohol—as if it were fully legal. Maybe they are ahead of the curve in case legalization eventually occurs here, as many cannabis enthusiasts believe is now more than a “pipe” (sorry) dream, at which point marijuana use will indeed essentially become like alcohol use.
Alcohol is legal, obviously, and people over 21 are permitted to drink, but employers can require that they not drink on the Weed-Whacked: Is It Time to Remove Marijuana from Discretionary Drug Screens? It will be essentially the same for marijuana if and when it’s legalized here, but right now in Pennsylvania, it is the same for medical marijuana: the law precludes employers from discriminating against someone in hiring and firing decisions simply because the person possesses a state-issued medical marijuana card, but they can require that they not use or be under the influence at work. Whether employers in our regions decide to leave marijuana in their discretionary urine drug testing panels or take it out in anticipation of eventual full legalization, the current availability of medical marijuana requires some retooling of fitness for-duty policies.
Again, to keep things simple, we have been advising that they address medical marijuana the way they have traditionally treated alcohol. But even with that, there will also need to be a few adjustments because of the key differences in assessing impairment due to marijuana use, such as the need for blood THC levels as opposed to breath testing for alcohol. If we can get them that far, regrettably, we have to add these other nuances:
• The Pennsylvania Medical Marijuana Law defines being “under the influence” as a blood level of 10 ng/mL of “active tetrahydrocannabinol,” while the ACOEM 2015 “Marijuana in the Workplace” paper suggests that anything greater than > 5ng/mL means “likely impaired” even in a chronic user.
The paper argues that 5ng/mL is roughly equivalent to a breath/blood alcohol of 0.04g%, the level the FMCSA uses to remove someone from “safety-sensitive duties,” which can be a surrogate for a kind of occupational standard.
So employers will need to pick 10 or 5 or something lower or in between, the way they define alcohol intoxication at either the FMCSA level of 0.04, the state DUI level (0.08 in Pennsylvania), or something lower or in between. I advise they discuss this with counsel.
• ACOEM goes on to say that while a blood test is recommended to “establish an initial presumption of impairment . . . [it] may not [necessarily] establish impairment in [any given] individual worker,” and should therefore be combined with a “medical evaluation for impairment . . . with consideration of the behavior, which led to the referral for testing.” In other words, marijuana blood tests should only be done in the context of suspected impairment and validated (or not) by a clinical fitness for duty evaluation, and NOT as a standalone evaluation just because someone reports using the medical marijuana our state law allows them to use. This becomes even more important when they recognize (and inculcate) the reality that just like those urine alcohol levels I saw in 1990, a blood THC level does not necessarily correlate with impairment: someone over 10 may be sober, and someone under 5 stone. So, is it time to take out those discretionary urine drug screen panels and fire up the gas or electric spinning string trimmers? If you’re still asking this question you are already behind the curve: Stop, look, and listen—the weed-whacking has already begun.
