The Department of Transportation’s Office of Drug and Alcohol Policy and Compliance has provided new guidance on reclassified FDA-approved marijuana products regulated by a State medical marijuana license from Schedule I to Schedule III drugs under the Controlled Substances Act.

The guidance considers whether a Medical Review Officer (MRO) may deem a drug test result as “negative” if the employee alleges the positive resulted from consuming a state licensed marijuana product.

The guidance states:

• 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.