A top federal health agency is proposing changes to drug testing policies for federal workers to clarify that having a doctor’s recommendation for medical marijuana or any other Schedule I drug is not a valid excuse for a positive drug test.

The proposal from Substance Abuse and Mental Health Services Administration (SAMHSA), which is part of the U.S. Department of Health and Human Services (HHS), comes in a pair of notices published in the Federal Register on Thursday.

While it is already the case that participating in a state medical cannabis program doesn’t shield federal workers from being fired over marijuana use, the new language being floated for addition to urine and oral fluid testing policies would further clarify the federal government’s prohibitionist stance:

(iii) A physician’s authorization or medical recommendation for a Schedule 1 controlled substance is not a legitimate medical explanation for a positive drug test result.

Beyond the medical recommendation issue, the notices also propose revised language that would more broadly clarify that passive exposure to, or accidental ingestion of, any illicit drugs—and not just marijuana—is not a valid excuse for a positive urine or oral fluid test.

The current policies on urine drug testing focus on marijuana as the one controlled substance for which passive expose (i.e. secondhand smoke) or ingestion of infused food products is “not a legitimate medical explanation” for a positive test result:

(i) Passive exposure to marijuana smoke is not a legitimate medical explanation for a positive THCA result.

(ii) Ingestion of food products containing marijuana is not a legitimate medical explanation for a positive THCA result.

But the SAMHSA proposed expanded language in one of the new notices that would apply the policy to any drug, while citing marijuana as an example along with poppy seeds:

(i) Passive exposure to a drug (e.g.,exposure to secondhand marijuana smoke) is not a legitimate medical explanation for a positive drug test result.

(ii) Ingestion of food products containing a drug (e.g.,products containing marijuana, poppy seeds containing codeine and/or morphine) is not a legitimate medical explanation for a positive urine drug test result.

In the separate notice for oral fluid drug testing, the federal agency is floating a somewhat similar expansion from the current policy, which states:

(i) Passive exposure to a drug (e.g., exposure to secondhand marijuana smoke) is not a legitimate medical explanation for a positive drug test result.

(ii) Ingestion of food products containing marijuana is not a legitimate medical explanation for a positive drug test result.

The new proposed language reads:

(i) Passive exposure to a drug (e.g.,exposure to secondhand marijuana smoke) is not a legitimate medical explanation for a positive drug test result.

(ii) Ingestion of food products containing a drug (e.g.,products containing marijuana) is not a legitimate medical explanation for a positive drug test result…

In this case, the current approach already includes all drugs when it comes to passive exposure, while focusing only on marijuana when it comes to infused foods. Under the revision, both categories of positive tests would apply to all illegal controlled substances while citing cannabis as an example.

A 60-day public comment period on the proposals is now open until June 6.

As more states have moved to legalize marijuana in some form, policymakers and officials have been grappling with drug testing protocols, with varying results.

For example, the director of national intelligence (DNI) said late last year that federal employers shouldn’t outright reject security clearance applicants over past use and should use discretion when it comes to those with cannabis investments in their stock portfolios.

FBI updated its hiring policies last year to make it so candidates are only automatically disqualified from joining the agency if they admit to having used marijuana within one year of applying. Previously, prospective employees of the agency could not have used cannabis within the past three years.

The Department of Transportation also took a different approach to its cannabis policy in 2020, stating in a notice that it would not be testing drivers for CBD.

And while the Biden administration has instituted a policy of granting waivers to certain workers who admit to prior cannabis use, it’s come under fire from advocates following reports that it fired or otherwise punished dozens of staffers who were honest about their history with marijuana.

White House Press Secretary Jen Psaki has previously attempted to minimize the fallout, without much success, and her office released a statement last year stipulating that nobody was fired for “marijuana usage from years ago,” nor has anyone been terminated “due to casual or infrequent use during the prior 12 months.”

A powerful congressional committee released a report last year that urges federal agencies to reconsider policies that result in the firing of employees who use marijuana legally in accordance with state law.

Military branches in general have been notably consistent in their policies—prohibiting service members from using any form of cannabis, including hemp-based products that have been federally legalized.

On Wednesday, for example, members of the Navy were specifically told not to drink a new Rockstar energy drink from Pepsi that contains hemp seed oil.

That advisory from the Naval War College is a follow-up on an initial Navy-wide notice in 2018 that informed ranks that they’re barred from using CBD and hemp products no matter their legality. Then in 2020 it released an update explaining why it enacted the rule change.

In 2019, the Department of Defense (DOD) announced a policy barring all active and reserve service members from using hemp products, including CBD. DOD more broadly reaffirmed that CBD is off limits to service members in earlier notices published in 2020.

About one year after hemp was federally legalized, the Air Force sent out a notice that similarly warned against using CBD products that are commonly found on the market.

A Massachusetts base of the U.S. Air Force told pilots last year that they could face disciplinary action for possessing any type of hemp product, even if it’s “for your pet.”

Officials with the military branch also said the previous year that it wants its members to be extra careful around “grandma’s miracle sticky buns” that might contain marijuana.

The Coast Guard said that sailors can’t use marijuana or visit state-legal dispensaries.

And NASA, which is not part of the military, warned that CBD products could contain unauthorized THC concentrations that could cost employees their jobs if they fail a drug test.

SAMHSA, which is one of the agencies behind the new proposed drug testing notices, may have influenced these prior policy updates. It released guidance to federal agency drug program coordinators in 2019 that outlined concerns about THC turning up in CBD products and causing failed drug tests. The agency issued an updated warning in 2020 after several more states voted to legalize marijuana.

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Photo courtesy of Martin Alonso.

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