Reconciling the Gap in Federal/State Marijuana Laws

As Congress feverishly rushed to finish up some critical legislative priorities before decamping for home for their annual August recess, they found time to initiate preliminary action to address the expanding policy gap between states that allow for the medical and/or recreational use of marijuana and the federal government’s prohibition on the use and possession of marijuana.

According to the National Conference of State Legislatures, 37 states and the District of Columbia allow the medical use of cannabis products. Furthermore, 19 states and the District of Columbia have enacted measures to regulate cannabis for recreational use. These developments result in an ever-expanding disparity with federal law, leaving a large majority of Americans confronted with the potential consequences of acting in compliance with state law while simultaneously violating federal law.

Comprehensive solutions

To address the aforementioned disparities, Congress has put forward a range of solutions, from addressing the policy gap comprehensively to doing so in a piecemeal fashion. On July 21, Senators Cory Booker (D-NJ), Chuck Schumer (D-NY) and Ron Wyden (D-OR) introduced S. 4591, the Cannabis Administration and Opportunity Act (CAOA), to legalize cannabis at the federal level. If passed, CAOA would remove cannabis from the Controlled Substances Act, expunge the criminal records of low-level federal cannabis convictions, regulate and tax cannabis, fund law enforcement and research related to the public safety aspects of legalization and require several federal agencies to establish rules for regulating various aspects of the industry.

For readers interested in the fate of workplace drug testing, CAOA removes the requirement that federal employees be screened for marijuana, but provides an exception allowing for the testing of law enforcement officers and other federal employees determined to have significant involvement in national security, the protection of life and property and public health and safety. CAOA also preserves the secretary of transportation’s authority to regulate and screen individuals involved in commercial transportation, and directs the Department of Transportation to develop and implement a national cannabis impairment standard within three years of enactment.

On the other side of Capitol Hill, the House passed their version of a comprehensive solution in April, largely along partisan lines. The Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3617) removes cannabis and THC from the Controlled Substances Act, establishes a tax on cannabis products, provides loans to businesses, prohibits denial of benefits to those with cannabis-related convictions, expunges cannabis convictions and directs studies on cannabis’ impact on the workplace and school-aged children. The MORE Act mirrors the drug-testing provisions in CAOA, but would continue to allow all federal employees to be tested for cannabis.

Despite passage of the MORE Act in the House and the backing of comprehensive reform from the Senate’s top Democrats, both bills are still far short of the 60 votes needed to overcome the filibuster in the Senate and be signed into law.

Recent piecemeal approaches

Given the steep hill to climb on a comprehensive legislative package to address the federal/state policy gap, certain lawmakers have come together to address limitations in a piecemeal fashion. For instance, H.R. 1996, the SAFE Banking Act, would address the difficulty state-legal marijuana businesses face in obtaining financial services by preventing federal prosecution of members of the banking sector that choose to service the industry. The bill has passed the House seven times with broad bipartisan backing, most recently as an amendment to the National Defense Authorization Act (NDAA), but has not been taken up in the Senate, as several influential Senators have vowed to block its consideration without also addressing the social equity and criminal justice reforms contemplated in more comprehensive legislation.

Another area of bipartisan consensus that lawmakers are looking to address relates to the difficulty researchers face when seeking to study marijuana. On July 26, 2022, the House passed H.R. 8454, the Medical Marijuana and Cannabidiol Research Expansion Act, by a 325-95 margin. The bill expedites the registration process for those performing marijuana research and directs a report on the impact of marijuana on adolescents, drivers and medical conditions. Expectations for the Senate to fast-track H.R. 8454’s passage remain high, following the Senate’s unanimous consent for passage of a similar bill, S. 253, the Cannabidiol and Marijuana Research Expansion Act, in March 2022.

What does the future hold for CDLs/safety sensitive positions?

Currently, workers in safety-sensitive positions, including CDL drivers, are prohibited from consuming any amount of marijuana, regardless of state laws. DOT requires workers in safety-sensitive positions to be tested for marijuana and other drugs prior to beginning work for a new employer and also at random during the course of their employment. Currently, DOT only permits testing via urine collection, which can identify traces of marijuana in an individual’s body up to 67 days following ingestion. Conversely, DOT testing for alcohol misuse is analyzed via breath or saliva and tests for impairment as opposed to presence.

For many employers in states where marijuana is legal, the inability to test for marijuana impairment has become a significant obstacle to hiring and retaining employees, and there is significant pressure to develop an impairment standard for marijuana that would be more reflective of states’ changing laws. While getting there is going to require a greater amount of research, DOT has proposed and is expected to finalize a regulation in October 2022 that will allow the use of oral fluid for drug testing. The oral-fluid testing window of detection for marijuana is 24 hours.

Even if Congress is able to fashion a legislative compromise and advance portions of the aforementioned legislation, it may still be some time before changes to the Department of Transportation’s Drug and Alcohol Testing Policy reflect the widespread consumption of marijuana in a similar fashion to that of alcohol consumption.

Basil Thomson is a senior associate with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner. Josh Leonard is a legislative assistant with Ulman.

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