Quality  Drug  &  Alcohol  Program  Management  &  Compliance,  Since  1991

Carve-Out Form

If you are considering removing marijuana/THC drug testing from your Drug Prevention & Employee Testing Program, you need to do your research first.  Federal Law still "prohibits" the use and possession of Marijuana in ALL 50 States!  Unfortunately, many States have voter approved laws permitting medical and/or recreational use of marijuana, that are in direct conflict with Federal law!  To make the issue even more cumbersome, some states have prematurely placed employer "prohibitions" against employers who won't hire or simply fire, based solely on a positive marijuana drug test!!!  We'd suggest speaking with a competent attorney, specializing in the areas of Workplace Drug Testing, Labor Law & Discrimination issues. We have included some under "Links WE Like".  Finally, we have provided some information and options below.  Please keep in mind that anything found on our website, this page or anyplace else should NOT be considered 'legal Advice" or a "legal opinion", only your in-house labor lawyer can do that.............HOPE YOU FIND THIS HELPFUL.


SO, WHAT'S THE ANSWER ? ....

There is no "easy" or "one size fits all" solution to the Feds vs States battle over marijuana.  We must wait to get a SOLID review and ruling by the United State Supreme Court to have a rock solid footing to stand on.  HOWEVER, until then, here we stand, not knowing what to do!!!  What can we do ????.....


  • Do we just stop testing for marijuana and just HOPE & PRAY nobody gets into accident, injured or even killed?
  • What if I just hired the Medical Marijuana guy, and he was the cause of the accident? Will I get sued for negligent hiring practices and wrongful death?
  • What about ADA and State protections extended to medical marijuana users?  Where does that leave me?
  • I'm stuck taking on additional liability, no matter what I do....right?!!!


THE ANSWER IS ........

We recommend, after you've consulted with your own in-house labor law attorney, that you consider the following Non-DOT testing process & procedure, when dealing with a verified Medical Marijuana user:

  • KEEP Pre-Employment, Random, Post Accident and Reasonable Suspicion Testing for MARIJUANA/THC active and ongoing...DON'T STOP!;
  • When a GC/MS confirmed positive is reported to your D.E.R..... DON'T PANIC!
  • Simply have your service agent submit the labs findings to your authorized M.R.O., for proper review.  Just as you would any other positive findings;
  • The M.R.O. will contact the Donor, obtain proof that "Medical Marijuana" was legally authorized for use by the Donor;
  • If the M.R.O. confirms "Medical Marijuana" was authorized, and being used as permitted, the M.R.O. will reverse the "Positive" test results to "Negative";
  • If the M.R.O. feels that the Donor's "State Legal" use of "Medical Marijuana" may endanger the Donor or others, he will recommend the Donor for a "Fitness For Duty" evaluation;
  • The Donor may not resume any type of "Safety-Related" or "Hazardous Job" junctions, until the "Fitness For Duty" evaluation has been completed and returned to the D.E.R.;
  • If the Doctor or facility, THAT YOU CHOSE, reports back that the Donor CAN resume any type of "Safety-Related" function, your clear to hire or NOT fire!
  • If the Doctor or facility reports back that the Donor can NOT safety perform his assigned duties, while having any detectable of this drug within his bodily system, DON'T HIRE!
  • If the Doctor or facility reports back that the use was "legal Recreational Use - NO VERIFIED MEDICAL NECESSITY", you're clear to fire or not hire!


The answer above is only one option to consider.   The whole idea is to treat "Medical Marijuana", in employee drug testing situations, like any other Doctor recommended substance,

that may cause "impairment" at work.   This link is a good Q & A seminar in New Jersey, kinda gives you an idea of what others are doing > > > > >






FOOD FOR THOUGHT:

  • Marijuana, Cannabis, THC sold in ANY FORM is still "ILLEGAL" under the Federal Controlled Substance Act and is listed as a Schedule 1 "Prohibited Substance";
  • Is a wrongful death, employer negligence, or other claim defensible by claiming "California Law allows marijuana, so I didn't test for it"?
  • What about testing after an injury accident....you going to carve marijuana out too?
  • What about reasonable suspicion testing?  If you stop that, how are you going confirm employee use and/or impairment?
  • Are you willing to "INVITE" more illegal drug users into your workplace, by carving out Marijuana testing?  Word gets around FAST or who's not testing for it.
  • What will cause you and your company more harm or increase your liability exposure....Testing for marijuana or NOT testing for it?


Our Recommendation:


  • KEEP  TESTING  FOR  MARIJUANA  for  all  test  types;
  • > > DON'T  CARVE-OUT  MARIJUANA  from  any  test  type;
  • > > > PROHIBIT  "Recreational  Marijuana";
  • > > > > ACCOMMODATE  CONFIRMED,  DOCTOR  AUTHORIZED,  Patients;
  • > > > > > PERFORM  M.R.O.  Review,  identical  to  your  current  process  for  Rx  Medications;
  • > > > > > > PERFORM  "FITNESS  FOR  DUTY"  Medical  evaluations,  when  suggested;
  • > > > > > > > CHECK   VALIDITY  OF  "Medical Marijuana"  CARDS  on  your  State's  website:






CALIFORNIA'S Site is:    http://mmic.cdph.ca.gov/MMIC_Search.aspx   



​Arizona's Site is:   https://azmmvs.azdhs.gov/   



TALK WITH YOUR ATTORNEY BEFORE DECIDINGANYTHING !  






















Request Form

IF  YOU  WANT  TO  CARVE-OUT   MARIJUANA,  Testing,  please complete and submit Form.

Form needed to change Lab Profile

- UPDATED February 21,  2019

IF  YOU  WANT  TO  KEEP   MARIJUANA,  Testing  in  your  program,  do  nothing.

We test for it by default!

WARNING

Check with you Corporate legal team

BEFORE CARVING OUT

Marijuana!

We suggest these folks, they can help !

EMPLOYERS

The Choice is yours.............how much additional liability are you and your insurance Company willing to take on ? ? ?

760. 770.6068