Marijuana Legalization: DOT to Audit Drug-Testing Policies

The U.S. Department of Transportation is reviewing its drug policies in light of marijuana legalization. And it looks as if the policies are about to get tougher.

Currently, marijuana is allowed in various state-regulated forms in 33 states. That means 95% of the country’s population lives in states where marijuana in some form may be used legally.

However, the situation is complicated. And that’s probably an understatement.

Marijuana has not been legalized nationally and is still an illegal controlled substance according to federal statutes. While recreational and medical marijuana users might feel safe in their home states, they are still participating in a federally illegal industry and can be vulnerable to arrest and prosecution.

What does this have to do with trucking?

No one knows what all this will look like even ten years from now. But for now, there is still a zero-tolerance policy in the trucking industry for marijuana use. The research and debates may be up in the air, but two things are for certain:

• Marijuana is illegal on the federal level.
• DOT has a zero-tolerance policy on marijuana and looks to increase policy enforcement.

Fresh concern over marijuana arose when railway workers started increasingly testing positive for drug use. Barry J. DeWeese, DOT’s assistant inspector general for surface transportation audit, believes there is a connection between this and the legalization of marijuana (among other issues regarding controlled substances). He has expressed concern and released a memo about it:

According to the National Transportation Safety Board’s (NTSB) 2017-2018 Most Wanted List of Transportation Safety Improvements, the decriminalization of marijuana, along with the increased popularity of dangerous synthetic drugs and a significant rise in the use and abuse of prescription medication and alcohol, have led to an epidemic of impairment in transportation…

[F]atal accidents linked to drug and alcohol impairment as well as reports of the climbing percentage of railway workers testing positive for drug use have called attention to the importance of the [Federal Railroad Administration’s] oversight of drug and alcohol testing.

The result of this will be a sweeping review of drug and alcohol testing policies in the transportation industry at large. The goal of the audit is to buckle down on drug use in transportation, make policies more effective, close loopholes, and better enforce compliance. DOT is getting more serious about zero tolerance.

What to tell your drivers

Chances are, a solid percentage of your drivers lives in states where marijuana in some form has been legalized. Some may have questions about how federal vs. state laws would affect their own personal use.

Here’s the reality: there is no acceptable marijuana use for a truck driver. A drug test doesn’t screen for state statutes. It screens for the presence of drugs. It isn’t going to ask to see your prescription or make exceptions for a medical condition. That’s just not where the laws or regulations are currently, and DOT is working hard to drive home the letter of the law.

This applies to your employees as well as any owner-operators you contract with. If any of your drivers test positive for marijuana use, whatever state they live in, and whether or not they can show a prescription, they’ve tested positive, end of story. They and you are fully liable and subject to penalty.

It doesn’t matter if individual states have legalized marijuana or not. It doesn’t matter whether drivers live in a state where marijuana and/or marijuana-derived substances are legal, or only operate in states where they’re legal. While it’s still against federal law, it’s still illegal for truckers. As far as trucking is concerned, marijuana and all its derivatives are illegal and not to be used by a driver, period.

Aren’t there medical uses that are federally legal?

There are currently many questions up about CBD oil. That’s because it’s the one cannabis-derived substance that has achieved federal legal status within certain restrictions. Let’s clarify a few points below, based on the facts.

Federal law says CBD oils are legal to possess if they contain no more than 0.3% THC, a component in marijuana. So what about a driver who has arthritis, for example, and wants to use a federally-approved CBD oil for relief?

For drivers, the answer is still no. There is no undisputed safety zone for medications, even if they meet federally-approved THC levels.

You still need to adopt a policy of no exceptions. When it comes to drug testing, gray areas can still get you and a driver in trouble. Marijuana, in whatever form, is still a hazard to your safety record, because whatever the federal law on certain CBD oils, a drug screen is still a drug screen.

And in terms of law enforcement and prosecution, there’s still a lot of uncertainty and a good amount of confusion. With so many questions, studies, conflicting laws, and shifting legal sands, even the legal use of CBD oil with under 0.3% THC is not in the clear.

Other new changes to drug screens

There are a few more new items on the docket as well for the DOT audit. More controlled substances are being added to the drug list, like fentanyl. They’re also considering adding hair testing as the accepted way to screen. While urine testing shows the current presence of drugs in a driver’s system, hair testing can show drug use going back several months.

DOT’s drug testing policies are on their way to getting tougher. Drivers need to know what’s on the test and to pass with flying colors.

Train on the following topics:

• Current DOT testing policies, and why they’re in place
• What to expect from a drug test
• The effects of drugs and alcohol impairment
• Reasonable suspicion (suspecting another employee of drug or alcohol impairment)

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