Medical marijuana patients targeted by sneaky new federal drug testing rule

Published on April 7, 2022

Proposed change would affect 9 million fed workers and contractors

In a proposed new revision to federal drug testing rules, government drug warriors are specifically targeting medical marijuana patients in an attempt to undermine the legal status of medical marijuana in 38 states.

A cruel relic of the ‘Just Say No’ era targets state medical marijuana laws and patients.

The new language, slipped quietly into a proposed revision published in the Federal Register this morning, states that “a physician’s authorization or medical recommendation for a Schedule I substance is not an acceptable medical explanation for a positive drug test.”

In other words: The federal government is doubling down on its insistence that cannabis is a substance “with no currently accepted medical use in the United States.”

Currently, 38 states have legalized the medical use of cannabis for patients who obtain a medical authorization.

Why this is important

The proposed new rule comes out of the Substance Abuse and Mental Health Services Administration (SAMHSA), a division of the US Department of Health and Human Services. Most people who have heard of SAMHSA know of it because of the agency’s annual National Survey on Drug Use and Health, which tracks the use of, and attitudes toward, various drugs.

But SAMHSA also oversees the rules on drug testing for federal agencies—rules that apply to most of the roughly 9 million people employed by Uncle Sam, including members of the military. That’s almost 6% of the total American workforce.

How to pass a drug test for weed–the ultimate guide

A relic of Reagan’s ‘Just Say No’ campaign

Justin Strekal, founder of the BOWL PAC, a legalization group aimed at supporting legalization at the Congressional level, noted that the proposed change “clarifies the existing oppressive and senseless process of drug testing for trace elements of THC, regardless of the worker having a physician’s recommendation.”

“It is appalling that President Biden has done nothing to address the Reagan-era reefer madness executive order that prohibits the government from hiring qualified workers on the sole basis that they consume cannabis in their off-the-clock hours,” Strekal added.

That Reagan-era order, EO 12564, established government-wide “drug-free workplace” policies that include drug testing. The order was signed by President Reagan on Sept. 15, 1986, the day after the President and Nancy Reagan appeared on national television to kick off the First Lady’s infamous “Just Say No” campaign.

To be clear: SAMHSA’s existing federal drug testing rules don’t specifically allow a patient who tests positive for cannabis to simply show their state med card and get a free pass. But there might exist a little allowance room, depending on the judgment of a federal agency’s Medical Review Officer.

Marijuana drug tests are now illegal in most workplaces in New York State

What’s a Medical Review Officer?

Federal agencies and departments employ (or contract with) Medical Review Officers (MROs). These are licensed physicians who serve as the point of contact between the federal employee, the test facility, and the employer.

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One of the main duties of the MRO is to investigate “failed” drug tests and determine, in consultation with the employee, whether there is a legitimate medical explanation for the drug test results. An MRO is a medical professional who is tasked with investigating and interpreting the results. For instance, an employee may have recently undergone surgery or be taking prescribed medication under a physician’s guidance. The MRO will undertake to verify and understand the circumstances, so that a single drug test doesn’t scuttle a job, a career, or a life.

Medical recommendation not an acceptable medical explanation

If the proposed new rule were to be adopted, Medical Review Officers would specifically be forbidden from accepting an employee’s medical condition, need for medical cannabis, and physician’s recommendation, as a legitimate medical explanation for the drug test results. In other words, the new rule would eliminate any interpretive wiggle room for MROs throughout the federal government.

It’s unclear how many federal employees would be affected by the new rule, because it’s unclear how many federal employees have had their THC-flagged drug tests overruled by an understanding MRO.

This is how federal prohibition hurts people

All of this is slightly insane but a logical outcome of the federal government’s continued refusal to change its outdated, disproven, and harmful categorization of cannabis as a Schedule I drug. That categorization was first established by Congress and President Richard Nixon for purely political reasons in the early 1970s. Nixon’s own presidential-appointed commission, after lengthy investigation, found that the Schedule I categorization of cannabis was unfounded and needlessly harmful. Nevertheless, it persists to this day.

Medical marijuana was first legalized by California voters in 1996. Since then, 37 other states have legalized the medical use of cannabis. Current polls indicate that 91% of all Americans believe cannabis should be legal for medical use.

Federal agencies continue to test for THC

Despite all the evidence, the federal government continues to cling to marijuana’s Schedule I status. Many federal employees are forced to submit to drug tests that include a test for the presence of THC that may have been ingested many weeks previous. Those drug tests occur—and federal employees still lose their jobs—even in states where it’s legal for all adults to grow, possess, and sell cannabis.

Can you change, alter, or end this proposed rule?

Yes. The public comment period on this rule is currently open, but it closes at the end of business on June 6, 2022.

Go to the federal government’s regulations comment page, and follow the “Submit a comment” instructions. Be sure to refer to file code SAMHSA 2022-0001.

Also: Contact your state’s two senators and your local representative in Congress. They can put pressure on SAMHSA and HHS leaders to scuttle this cruel and unnecessary rule.

Let them know what you think. It matters.

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Bruce Barcott
Bruce Barcott
Leafly Senior Editor Bruce Barcott oversees news, investigations, and feature projects. He is a Guggenheim Fellow and author of Weed the People: The Future of Legal Marijuana in America.
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