As legal markets for recreational marijuana continue to open up in the U.S., and public opinion about responsible marijuana use slides towards acceptance, the requirements for employment-related drug testing are slowly evolving to meet the moment. News articles and blog posts about changes to employment related drug testing laws typically have a standard caveat that employers with workers covered by the U.S. Department of Transportation’s regulations are likely not impacted by whatever change in the law is being discussed. This blog post, however, addresses a recent change to the DOT’s rules. Specifically, the DOT announced a new testing option that employers subject to its regulations can use in order to get a more accurate picture of workers’ recent marijuana use.

This issue has been – and will continue to be – a challenge for anyone with an interest in determining present marijuana intoxication. While the technology for assessing whether someone standing in front you is drunk at that very moment has been widely available for decades, no such technology currently exists for marijuana. Further complicating matters is that the marijuana tests that have been historically available show positive results for cannabis consumption from up to a month prior to the test. That information is not useful if you are an employer trying to determine whether an employee is presently under the influence of cannabis to assess whether they can safely operate machinery, like a tractor trailer or a locomotive. Despite these limits on cannabis testing technology, the DOT has required employers to test employees subject to its regulations using the available testing methods, ostensibly in the name of safety. However, in light of recent developments in testing technology that are claimed to allow for identification of cannabis use as recently as one hour prior to the test, the DOT has released new rules expanding the types of testing employers are able to use.

The new DOT rules, found at Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Addition of Oral Fluid Specimen Testing for Drugs, 88 Fed Reg 27596 (May 2, 2023), allow subject employers to use oral fluid testing for certain marijuana tests, as opposed to urine, blood, or hair tests. The benefit of adding oral fluid testing as an option is that it is supposed to provide a more accurate picture of an employee’s cannabis use. With the new testing method, employers may be able to avoid disciplinary action for employees who have casually consumed cannabis weeks prior to a test. That’s because, according to the DOT, oral fluid tests allow detection of THC – depending on the frequency of use – anywhere from one to twenty-four hours after use. In order to calibrate the testing to ensure that secondhand cannabis smoke does not result in a false positive, the finalized rule sets a four nanogram-per-milliliter threshold for THC, which the DOT said “would detect use of marijuana while eliminating possibilities of positive tests resulting from passive exposure.”

As mentioned above, this would not be a drug testing blog post without some caveats, and this change comes with two big ones. First, while the regulations went into effect on June 1, 2023, employers cannot start using oral fluid tests until the US Department of Health and Human Services certifies at least two laboratories to handle the testing. As of this writing, HHS has not certified any laboratories. And second, while oral fluid testing will eventually be a tool available for employers to use, it will not be allowed in all testing circumstances, for instance, blood and urine testing will remain a mandatory part of the Federal Railroad Administration’s post-accident toxicological testing. Those caveats notwithstanding, the fact that the federal government has shifted a cannabis-related rule in a direction that – in theory – will allow workers more freedom to decide whether to consume cannabis in the states where it is legal to do so is an example of how  the momentum created by state-level cannabis legalization impacts the federal level. However, any changes to employment policies based on these changes must be made with extreme caution, as marijuana remains a Schedule I controlled substance in the eyes of the federal government.

As with any federally regulated workplace decisions, it is best to consult with an experienced attorney before implementing any modifications to your current practices. Dykema’s Labor & Employment team stands ready to assist, and will continue to keep you updated as the laws change.