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MEDICAL MARIJUANA POLICY

30 Jul 2014

...EXHIBIT A: MEDICAL MARIJUANA POLICY 

MRO Sample Standard Operating Procedures on Medical Marijuana, Marinol and Hemp

Because Sample MRO believes that legal and regulatory compliance is a critically important component of your workplace substance abuse testing program, we would like to take this opportunity to update you on your policy regarding medical marijuana and hemp use in the workplace.  We request that you respond to our Request for Policy Election within 14 days of receipt of this Notice.

There has been a great deal of publicity on the authorized use of medical marijuana over the last five years. State laws implementing regulations, city ordinances and case law decisions may have changed the way your workplace Drug and Alcohol Testing Policy should read or you may need to consider addressing this issue in your policy. Legal authority is also constantly changing around this topic regularly, making it difficult for employers to determine how to address the issue of medical marijuana in their workplace testing program. The impact of the use of hemp products on workplace testing programs has also become an important program consideration. This is why National Drug Screening would like to highlight the key information you and your company should know on these topics.

Even if your state has marijuana laws, you are not necessarily bound to accepting medical usage as a legitimate reason for a positive test.  The exceptions are Montana and Rhode Island, whose laws state that penalizing registered qualified patients in any way for their use of medical marijuana is prohibited. Arizona’s law is very comprehensive, has unique policy implications, and requires individual legal review. Also, case law in Oregon and California should be taken into consideration when making a policy decision on whether or not to accept medical marijuana as a legitimate medical explanation for a positive drug test result. 

Because of these issues, Sample MRO has adopted Standard Operating Procedures on medical marijuana, marinol, and hemp to clarify the policy and procedures the Sample MRO Medical Review Officers will follow. Absent a written election from you, our employer client, these Standard Operating Procedures will be followed effectively immediately. 

If you have not recently reviewed your Drug and Alcohol Testing Policy relative to medical marijuana, marinol and hemp it is critically important that you do so.  Please assist us by completing and returning the Employer Election Form clarifying your policy after reviewing the explanatory information that follows the Employer Election Form.  Thank you for your attention to this important program compliance issue. 

EMPLOYER ELECTION FORM 

If you do not return this Employer Election Form within 14 days of receipt of this Form, Sample MRO will assume your acceptance of the foregoing Standard Operating Procedures and will implement its Policy as written. 

I have reviewed the foregoing Sample MRO Standard Operating Policy and Procedures addressing its Medical Marijuana / Marinol / Hemp Standard Operating Procedures.  My election relative to those policies and procedures follows: 

Options: 

€    I will provide my written employer policy by e-mail or fax to the Sample MRO Medical Review team within two weeks of receipt of this Notice to: 

E-mail:  

Fax:       

 

€    I will not provide a written employer policy or comment further on these Standard Operating Procedures but rather accept and agree to the Sample MRO Policy and Procedures on Medical Marijuana, Marinol and Hemp.

 

Employer:      ________________________________________________________ 

 

Designated Employer Representative (currently setup to receive drug test results from Sample MRO): ________________________________________________________

 

If there has been a recent change in the Designated Employer Representative, please provide the new contact and reason for the change.

 

New Contact: ________________________________________________________

 

Reason for change: ___________________________________________________

 

Accepted/communicated by:           _________________________________________­­­­­­­­

                                                     Signature of individual authorized to sign agreements

                                                    

                                                      _________________________________________

Printed Name

 

Date: ____________________________________

 

 

Explanatory Information

 

Following are the Sample MRO Standard Operating Procedures on Medical Marijuana, Marinol and Hemp:

 

1)     U.S. Department of Transportation and Department of Health and Human Services (federal employees) Mandated/Regulated Test Procedure: 

Consistent with federal law and consistent with federal policy, a donor’s claim of Medical Marijuana authorized by State Law will not be considered a reasonable medical explanation for a positive laboratory drug test for marijuana in a mandated (DOT or DHHS) drug test. 

2)     Non-DOT/Non-Mandated/Non-Regulated Test Procedure:

 a)      No Employer Policy on Medical Marijuana Explanations on Record or Employer Policy Allowing Medical Marijuana Usage 

i)       If there is no employer policy on record relative to the state statutes or city ordinances addressing medical marijuana, the Sample MRO Medical Review Officer will follow the state law and any applicable city ordinances in the states with medical marijuana statutes or ordinances and will report the test as a verified negative consistent with the following procedures. 

ii)     The Sample MRO Medical Review Officers will follow the law and guidelines for those states and cities that currently have medical marijuana statutes or ordinances utilizing a standardized review process.  The following twenty three (23) states, the District of Columbia, and fourteen (14) cities have Medical Marijuana laws or ordinances as of the date of this Standard Operating Procedure: 

States

  1. Alaska
  2. Arizona
  3. California
  4. Colorado
  5. Connecticut
  6. Delaware
  7. Hawaii
  8. Illinois
  9. Maine
  10. Maryland
  11. Massachusetts
  12. Michigan
  13. Minnesota
  14. Montana
  15. Nevada
  16. New Hampshire
  17. New Jersey
  18. New Mexico
  19. New York
  20. Oregon
  21. Rhode Island
  22. Vermont
  23. Washington

and the District of Columbia 

For an updated list of Medical Marijuana States, visit the Medical Marijuana Pros and Cons web site at: Legal Medical Marijuana States and DC   

Cities: 

City of Columbia, Missouri - Ordinance states that seriously ill adults who obtain and use marijuana and/or marijuana paraphernalia for medicinal purposes pursuant to the recommendation of a physician shall not be subject to arrest, prosecution, punishment or sanction. This ordinance is therefore arguably applicable to workplace sanctions after a positive drug test result due to the medicinal use of marijuana.           

City of Ann Arbor, Michigan - Ordinance refers to medical marijuana but it does not relate to workplace drug testing.          

City of Detroit, Michigan - Ordinance refers to medical marijuana but it does not relate to workplace drug testing. 

City of Ferndale, Michigan - Ordinance refers to medical marijuana but it does not relate to workplace drug testing.           

City of Flint, Michigan - Ordinance refers to medical but it does not relate to workplace drug testing; March 4, 2007 ordinance permits patients to have access to medical marijuana. 

Traverse City, Michigan - Ordinance refers to medical marijuana but it does not relate to workplace drug testing. 

The following California cities have adopted medical marijuana guidelines: 1) City of Arcata, 2) City of Berkeley, 3) City of Oakland, 4) City of San Diego, 5) City of San Jose, 6) City of Santa Cruz, 7) City of Santa Rosa, and 7) City of Sebastopol.  A number of additional California counties regulate medical marijuana cultivation and possession in some form or fashion. 

This Standard Operating Procedure will be amended should other states pass legislation or city ordinances on this subject. 

iii) When reviewing a case where the donor asserts the medical marijuana defense in a state that has an existing statute or ordinance, the individual requirements of each of the state laws or city ordinances will be followed along with the Sample MRO prescription verification process to the extent the prescription verification applies in a particular state. 

iv) Specifically, where a state issues a registry card to participants in a medical marijuana program, a copy of the donor's current registry card will be requested.  If the registry card is current and compliant with the individual state's statutory requirements it will be accepted as a reasonable medical explanation.  

v) In a state in which written documentation is required such documentation must be compliant with the individual state's statutory or individual city's requirements and verified by the Medical Review Officer. Such verification must be obtained in writing from the physician or practitioner authorizing the use of the medical marijuana. 

vi) Absent any of the foregoing required documentation, the result will be reported as verified positive. 

b)     Written Employer Policy, Employer Election or direction on Medical Marijuana Explanations on Record Instructing the Sample MRO Medical Review Officer to report a positive laboratory drug test result for marijuana as a verified positive if the donor alleges the use of medical marijuana. 

i)       If there is a written employer election, direction or policy on record with Sample MRO Medical Review instructing the Sample MRO Medical Review Officer to report a positive laboratory drug test result for marijuana as a verified positive if the donor alleges the use of marijuana for medical reasons, the Sample MRO Medical Review Officer will not continue the interview with the donor or conduct a further medical/legal review to determine whether the donor’s claim of alleged use is consistent with a particular state medical marijuana law or ordinance. Instead, the donor will be informed of the employer's policy and the result will be reported as positive with notice to the Designated Employer Representative (DER) for the reason. 

Marinol Explanation Procedure: 

The authorized use of Marinol will be considered a reasonable medical explanation for a positive laboratory drug test for marijuana.  The Sample MRO Medical Review Officer will verify the donor’s explanation as the MRO verifies all prescription explanations.  This procedure applies to both mandated (DOT or DHSS) and non-mandated tests. 

Hemp Explanation Procedure:      

Consistent with federal policy, consuming a hemp food product, or the use of a hemp product (examples: lotions, shampoos), will not be considered a legitimate medical explanation for a prohibited substance or metabolite in an individual’s specimen.  When a specimen is positive for marijuana and the donor claims hemp ingestion or use, the test will be reported as a verified positive. 

Policy Suggestions

The following two alternative policy language suggestions are provided as a courtesy for your consideration.   The suggestions are notoffered as legal advice but are instead offered for informational purposes.  Sample MRO is not a law firm and does not offer legal advice.  It is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances. Sample MRO makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Legislative, regulatory and case law developments regularly impact general research. 

It is strongly recommended that you consult with your legal counsel prior to adopting either of the following policy language suggestions to confirm that the language is consistent with your organization's position on medical marijuana use. 

Drug Free Workplace Policy Language 1: 

Medical Marijuana explanation accepted if use is consistent with state law, regulations, or ordinances: 

The use of marijuana for medical purposes ordinance will be considered an acceptable explanation or excuse for a confirmed positive laboratory test for marijuana in those states or cities that permit the use of medical marijuana under state law or ordinance. 

Sample MRO Medical Review will follow the following procedures before accepting a medical marijuana explanation or excuse for a laboratory confirmed positive test result for marijuana: 

i)       When reviewing a case where the donor asserts the medical marijuana defense in a state that has an existing statute/regulation, or ordinance, the individual requirements of each of the state laws/regulations or city ordinance will be followed along with the Sample MRO prescription verification process to the extent the prescription verification applies in a particular state. 

ii)     Specifically, where a state issues a registry card to participants in a medical marijuana program, a copy of the donor's current registry card will be requested.  If the registry card is current and compliant with the individual state's statutory requirements it will be accepted as a reasonable medical explanation and the test result will be verified and reported as a negative test result.  

iii)   In a state in which written documentation is required such documentation must be compliant with the individual state's statutory or individual city's requirements and verified by the Medical Review Officer. Such verification must be obtained in writing from the physician or practitioner authorizing the use of the medical marijuana. 

Absent any of the foregoing required documentation, the result will be reported as verified positive.  

Drug Free Workplace Policy Language 2: 

Medical Marijuana not accepted as an explanation even where permitted by state law, regulation or ordinance: 

The use of marijuana for medical purposes, even if permitted by state law, regulation or ordinance, will not be considered an acceptable explanation for a confirmed positive laboratory report for marijuana and will be reported by the Medical Review Officer as a verified positive drug test for marijuana.  Procedurally, the Sample MRO Medical Review Officer will not continue an interview with the donor or conduct a further medical/legal review to determine whether the donor’s claim of alleged use is consistent with a particular state medical marijuana law or ordinance if the donor claims his or her use is authorized by a medical marijuana law. Instead, the donor will be informed that the employer's policy is to not accept a medical marijuana explanation and that the MRO will report the result as positive with notice to the DER for the reason. 

However, state law, regulations and ordinance requirements/limitations will be followed and a reasonable accommodation analysis will be conducted as applicable or as required by the federal Americans with Disabilities Law and any applicable state law, regulation, ordinance or case law/administrative decision precedent.