With changes in State and Federal laws in recent years, there have been a lot of questions about some of the rules and regulations safety-sensitive employees like commercial truck drivers are being held to. Companies never want their drivers to operate a vehicle while impaired, and testing makes it challenging to pinpoint if THC was consumed while on duty or not.
Safety Concerns
Initial studies from the Insurance Information Institute (I.I.I.) indicate that the increase in legalized Marijuana is correlating with an increase in motor vehicle accident rates. An April 2018 study by the Highway Loss Data Institute found that in Colorado, Washington and Oregon, the sale of legalized recreational Marijuana was associated with a 6% increase in collision claim frequency.
Collision claims impact not only your employees’ safety and the integrity of your commercial vehicles, but also the safety of the public and your business’s reputation.
Alcohol vs. THC (the impairing ingredient in marijuana)
THC is different from alcohol in a few key ways:
- Receiving a DUI due to testing positive for Marijuana will likely result in the driver being disqualified from driving.
- There is no efficient or reliable road-side test to determine if a Marijuana user is currently feeling the effects of the THC (feeling “impaired” or “high”).
- THC that enters a Marijuana user’s bloodstream can remain in a person’s system for weeks after use. Even if a person no longer feels impaired, they can still test positive during a drug test.
- The level of THC in the bloodstream that qualifies as impairment varies by state, and it is possible that any amount of THC can find the driver charged with a Marijuana-related DUI.
Legalized Marijuana and DOT Drug Testing Rules for Commercial Drivers
On Feb. 18, 2020, the Agricultural Improvement Act of 2018 (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substance Act (CSA). This made any hemp-derived products containing up to .03% tetrahydrocannabinol (THC) exempt from the CSA’s Schedule 1, which is a list of drugs considered to have the highest potential for abuse and no accepted medical uses.
The Department of Transportation’s (DOT) drug testing rules require employees in certain safety-sensitive positions to be tested for Schedule 1 drugs. As a result, these developments have raised questions about whether safety-sensitive employees may use a derivative of marijuana called cannabidiol (CBD) and whether these developments have any other effect on the drug testing rules.
Marijuana or CBD products cannot be used for medicinal purposes under the DOT; therefore, it is not a valid medical explanation for a commercial motor vehicle driver (CMV). The DOT has provided guidance on these frequently asked questions from employers.
Employer Frequently Asked Questions
Does the legalization of use and possession of marijuana by a state or other country affect CMV drivers in the United States?
CMV drivers still have to abide by the Federal Motor Carrier Safety Regulations (FMCSRs) regardless of whether a state or other country legalizes marijuana. Marijuana is classified as a Schedule I controlled substance and, under the Federal Motor Carrier Safety Administration (FMCSA), a person is not physically qualified to drive a CMV if they use, are in possession of or under the influence of any Schedule 1 controlled substance, such as marijuana. State and other laws that legalize marijuana have not changed the FMCSA regulations. Thus, CMV drivers must not use, possess or be under the influence of marijuana while on duty or employed in a safety-sensitive position.
Can DOT-regulated, safety-sensitive employees use CBD products?
Safety-sensitive employees are subject to drug testing under 49 CFR Part 40. This regulation describes required procedures for conducting workplace drug and alcohol testing for the federally regulated transportation industry.
Notably, the DOT tests for THC on their drug testing. This means that the DOT doesn’t test specifically for CBD, but for the level of THC in an individual’s system. THC is the primary psychoactive component of marijuana. If the CBD product contains over .03% THC and is found when drug testing, it will be treated as a positive marijuana test under DOT regulations. Any product, including CBD products, with a concentration of more than 0.03% THC remains classified as marijuana—a Schedule I drug under the CSA that the DOT drug tests for. However, if CBD’s THC concentration falls under the .03% threshold, it is exempt from Schedule 1 under the CSA, which generally means an employee may use it.
There is no oversight by the Food and Drug Administration to determine how much THC is in CBD. Employees should be cautious when purchasing and using CBD, as it may contain higher levels of THC than what is actually on the label.
Under the DOT rules, use of CBD products is not a legitimate medical explanation for a positive drug test. Therefore, a medical review officer (MRO) must classify a test that shows the appropriate amount of THC as positive, even if the employee claims the positive result was due to CBD products. Employers should cover this in driver training and urge drivers to exercise caution when using CBD products.
Is medical marijuana acceptable for CMV drivers to use?
The DOT-regulated drug testing program does not allow use of medical marijuana by safety-sensitive employees, even if a state law has legalized it. Thus, medical marijuana use is not an acceptable medical explanation for a safety-sensitive employee’s positive drug test result. MROs may not verify a drug test as negative even if a physician recommended that the employee use marijuana for medicinal use.
Best Practices for Hiring Commercial Drivers
With the increase in legalization of Marijuana, the confusion between state and federal laws, and the potential impact to your business, now is the time to make sure your hiring and employment practices and standards, including drug and alcohol policies and testing procedures, are the most effective for your business as well as in compliance with all state and federal laws.
- Implement or update your hiring practices to include pre-hire drug and alcohol screening, criminal background checks, and Motor Vehicle Report (MVR) review.
- Establish MVR acceptability requirements and standards for hiring new employees and on-going monitoring of current employees.
- Implement an on-going drug and alcohol testing program. The program should be designed to ensure it meets all state and federal requirements and does not violate any rules or regulations. You should also ensure all drivers are aware of the program and the implications of Marijuana use on their CDL.
There are a wide range of risks to your business, which is why we provide our customers with access to safety management resources and knowledgeable industry professionals who can provide an assessment of your business.
Links and Resources:
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DOT Office of Drug and Alcohol Policy and Compliance Notice for CBD products
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DOT Office of Drug and Alcohol Policy and Compliance Notice for Medical Marijuana.
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