Medical marijuana patients targeted by sneaky new federal drug testing rule

The proposed change would affect 9 million Fed workers and contractors

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

A cruel relic from the “Just Say No” era is targeting state medical marijuana laws and patients.

The new language, which quietly leaked into a proposed revision of the federal registry this morning, says that “a physician’s approval 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 stepping up its insistence that cannabis is a substance “with no current accepted medical use in the United States.”

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

Why this matters

The proposed new rule comes from 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 it from the agency’s annual National Survey on Drug Use and Health, which tracks use of and attitudes towards various drugs.

But SAMHSA also oversees federal drug testing rules — rules that apply to most of Uncle Sam’s approximately 9 million employees, including members of the military. That’s nearly 6% of the entire American workforce.

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A relic of Reagan’s “Just Say No” campaign

Justin Strekal, founder of the BOWL PAC, a legalization group aiming to support congressional-level legalization, noted that the proposed change “clarifies the existing oppressive and pointless process of drug testing for trace elements of THC, whether the worker has a… Doctor has recommendation.”

“It is appalling that President Biden has done nothing to address the Reagan-era reefer craze executive order that prohibits the government from hiring qualified workers simply for using cannabis outside of work hours,” Strekal added .

This Reagan-era executive order, EO 12564, established government-wide guidelines for “drug-free workplaces” that include drug testing. The executive order was signed by President Reagan on September 15, 1986, the day after the President and Nancy Reagan appeared on national television to launch the First Lady’s infamous “Just Say No” campaign.

To be clear, the existing SAMHSA state drug testing rules do not specifically allow a patient who tests positive for cannabis to simply present their state med card and receive a complimentary pass. But depending on the judgment of a federal agency’s Medical Review Officer, there might be a small leeway.

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What is a Medical Review Officer?

Federal agencies and departments employ (or contract with) Medical Review Officers (MROs). These are licensed doctors who act as a point of contact between federal employees, the testing center and the employer.

One of the primary responsibilities of the MRO is to investigate “failed” drug tests and, in consultation with the staff member, to determine if there is a valid medical explanation for the drug test results. An MRO is a medical professional tasked with examining and interpreting the results. For example, an employee may have recently undergone surgery or be taking medication prescribed by a doctor. MRO is committed to reviewing and understanding circumstances so that a single drug test doesn’t destroy a job, career or life.

Medical recommendation not an acceptable medical explanation

If the proposed new rule were adopted, Medical Review Officers would be specifically prohibited from accepting an employee’s medical condition, need for medicinal cannabis, and a doctor’s recommendation as a legitimate medical explanation for drug test results. In other words, the new regulation would take away any room for interpretation from MROs nationwide.

It’s unclear how many federal employees would be affected by the new rule, as it’s unclear how many federal employees had their THC-labeled drug tests overridden by an understanding MRO.

This is how the federal ban harms people

All of this is slightly insane, but a logical result of the federal government’s continued refusal to change its outdated, disproved and harmful categorization of cannabis as a Schedule I drug. This categorization was first introduced by Congress and President Richard Nixon in the early 1970s for purely political reasons. Nixon’s own presidential-appointed commission, after lengthy investigations, found that the Schedule I categorization of cannabis was unfounded and unnecessarily harmful. Nonetheless, it continues to this day.

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

Federal agencies continue to test for THC

Despite all the evidence, the federal government still maintains marijuana’s Schedule I status. Many federal employees are forced to submit to drug tests, which include testing for the presence of THC that may have been ingested many weeks previously. These drug tests are happening — and federal employees are still losing their jobs — even in states where it’s legal for all adults to grow, possess, and sell cannabis.

Can you change, amend or end this proposed rule?

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

Go to the Federal Government Regulations Comment Page and follow the “Submit a Comment” instructions. Be sure to refer to the file code SAMHSA 2022-0001.

Also, check with your state’s two senators and your local representative in Congress. You can pressure SAMHSA and HHS leaders to scrap this cruel and unnecessary rule.

Let them know what you think. It is important.

Bruce Barcott

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

Check out Bruce Barcott’s articles

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