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The New Balancing Act - Assessing the Risks of Drug Testing for Marijuana - July 17, 2019

Iowa’s five Medical Cannabidiol (described within this article as “medical marijuana”) dispensaries have been dispensing legal medical marijuana products since December 2018 to Iowans carrying a Medical Cannabidiol registration card. Since medical marijuana was legalized in Iowa in 2017, the program has swiftly grown.


The Office of Medical Cannabidiol, maintained within the Iowa Department of Public Health, compiles and regularly reports statistics concerning the number of registered cardholders. As of July 1, 2019, there were 3,456 Iowans with an active registration card allowing them to legally obtain medical marijuana products. This number includes designated primary caregivers who may obtain the products on behalf of a minor or adult patient who requires such assistance. The number of registered cardholders has continued to steadily increase since the opening of Iowa’s dispensaries.


To Test or Not to Test: Examining Drug-free Workplace Policies

With a growing number of registered Medical Cannabidiol cardholders in Iowa, many employers are questioning if their hiring and drug-free workplace policies and practices need to be updated. If an employer has a drug-free workplace testing policy in place and is not considering these questions, they should be.


Interview Questions

To begin, it is important to educate staff members who conduct interviews that they should not ask a job applicant if they have a Medical Cannabidiol registration card or use medical marijuana. Because registration cards are only issued to individuals with one of the qualifying medical conditions outlined in Iowa’s medical marijuana law, this question is essentially asking an applicant about their medical conditions. Additionally, since registered cardholders are using medical marijuana for treatment purposes, the question also seeks information about medications the potential employee is taking. Such questions can leave an employer open to a disability discrimination claim.


Testing

As to workplace drug testing, an Iowa employer who has established a policy and testing program under section 730.5 of the Iowa Code may test and take actions against current and prospective employees who have a positive drug test because of their legal use of medical marijuana. However, this new section of the law has not yet faced a legal challenge, so employers who wish to test, and then make related employment decisions, should do so with an understanding that they may later face legal action. Put simply, employers considering whether to continue to test for marijuana use must weigh the potential of becoming the “test case” in Iowa, wherein Iowa courts will analyze the law for the first time, against the benefits they believe they gain from testing for this substance.


Cannabidiol vs. THC 

Notably, Iowa has only legalized cannabidiol, which is just one component of marijuana. Cannabidiol is not the same as tetrahydrocannabinol, more commonly known as THC, which is the compound in marijuana that makes an individual feel “high” or “stoned.” While Iowa’s legal medical marijuana products may contain THC, the amount is heavily restricted. When performing a drug test for marijuana, a test will register THC, but not cannabidiol. Currently, there are legal Iowa products with enough THC to potentially result in a positive test result.

           

State vs. Federal Law

However, federal law still holds that marijuana products with more than 0.3 percent THC are illegal. As Iowa law allows for medical marijuana products to contain more than 0.3 percent THC, many if not all of the medical marijuana products dispensed within the state are federally illegal. For this reason, some employers still may wish to test for marijuana under their drug-free workplace policies. However, they should be prepared to face additional scrutiny if they decide to not hire an applicant or terminate a current employee because of a positive test result that turns out to be a registered cardholder. Such employers should ensure that their drug-free policy is compliant with Iowa law in all respects and seek legal counsel before making an employment decision concerning a registered cardholder.


Vendor and Policy Updates

A number of employers are choosing to no longer test for marijuana, as they feel the risk of being the “test case” in Iowa for an employment discrimination claim is too high comparative to the risk of having an employee who is legally using these stigmatized products. If an employer makes this decision, they need to ensure that the third-party vendor receives this updated information and does not perform a test for marijuana. Any written policies that disclose to potential and current employees what is being tested should be updated to remove marijuana as well.


Some employers have stated that, while they are informing employees that they are no longer testing for marijuana, they have not changed their testing policy with their vendor as changes to the test cups, etc., may come with additional fees or charges. Employers are stating that, when they receive the results, they are just not looking at the marijuana test. This is unwise, and employers should be prepared to pay any fees for changing their testing policies with the vendor performing the test.


An Ever-Shifting Landscape

New laws frequently mean new issues, and such is the case with Iowa’s medical marijuana program. The statute remains untested in Iowa courts, meaning there has been no court interpretation of the law’s language and how it effects a range of issues, including drug testing in the workplace. While employers are working to adjust policies and practices to comply with the law, the legislature is continuing to consider new changes to the statute. Employers should regularly discuss workplace policies with their legal counsel and with staff tasked with enforcing drug-free workplace policies affected by medical marijuana laws and seek advice prior to making substantial changes.


For more information on Iowa’s medical marijuana law, see “Between a rock and a high place: Meet Iowa’s new medical marijuana statute” in the October 2018 issue of Iowa Employment Law Letter.



Davis Brown Law Firm blogs, legal updates, and other content are for educational and informational purposes only. This is not legal advice and it does not create an attorney/client relationship between Davis Brown and readers. Each circumstance is different; readers should consult an attorney to understand how this content relates to their personal situation. You should not use Davis Brown blogs or content as a substitute for legal advice from a licensed attorney in your state. Reproduction of Davis Brown content without written consent is prohibited.

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