§40.137 On what basis does the MRO verify test results involving marijuana, cocaine, amphetamines, semi-synthetic opioids, or PCP?

Question: Recently, the Drug Enforcement Administration (DEA) issued an order (Order) that reclassified FDA approved drug products derived from marijuana and marijuana products regulated by a State medical marijuana license from Schedule I to Schedule III drugs under the Controlled Substances Act (CSA). When reviewing a laboratory reported marijuana positive drug test result, can a Medical Review Officer (MRO) deem the test a “negative” if the employee alleges the positive resulted from consuming a State licensed marijuana product?

Answer:

• No. Currently, there is no instance when the MRO could verify a laboratory-confirmed marijuana positive drug test result as “negative” when an employee claims the positive was caused by a State licensed marijuana product.
• Even after rescheduling, State-dispensed marijuana does not constitute an FDA-approved drug. Without FDA approval for a controlled substance, it cannot be prescribed.
• A “legitimate medical explanation” requires use of a legally prescribed controlled substance in compliance with Federal laws governing such a prescription. 49 CFR §§ 40.137(a); 40.141(b).
• Although the MRO may be presented with documentation such as State-issued medical marijuana cards, physician recommendations or certifications, or dispensary records or receipts, these documents do not satisfy part 40 requirements for a “legitimate medical explanation.”
• Marijuana use under State marijuana programs or other non-prescription sources do not qualify as a “legitimate medical explanation” under 49 CFR §40.137(a). In addition, marijuana use is not compatible with safety-sensitive functions.