Trucking Contemplates Drug Policies in Age of Legal Pot

As more states legalize marijuana, it’s becoming a growing issue for the trucking industry.

Recreational marijuana has been legal in Colorado since 2014, and drug tests indicate more drivers and job applicants are using the substance.

Even as more trucking companies and commercial driver’s license schools are telling candidates not to fill out applications if they’re going to test positive, failure rates are still as high as 60 percent, said Greg Fulton, president of the Colorado Motor Carriers Assn.

It’s hurting the ability of some companies to grow, said Fulton. “It’s just so much more prevalent. It’s in cookies, muffins, bread, candy. More people are testing positive. People say they were at a party and just didn’t know.”

Recreational marijuana is now legal in Alaska, California, Maine, Massachusetts, Nevada, Oregon, Washington and the District of Columbia. Medical marijuana is also legal in 29 states and the District of Columbia, and a 2016 survey from Gallup revealed that 13 percent of Americans said they use marijuana, up from only 7 percent in 2013.

Still, trucking companies won’t be changing their zero-tolerance policies anytime soon, in part because marijuana remains illegal under federal law and Department of Transportation regulation.

More States Confront the Issue

Recreational marijuana sales in California are set to begin in early– 2018, and trucking companies have no intention of changing their policies.

The California Trucking Assn. advises all current and prospective commercial drivers that federal law prohibiting the use of marijuana is still in full effect, no matter what changes have occurred in state law, said Shawn Yadon, chief executive of the trade group.

Federal law prohibits both medical and recreational consumption. This means a driver who uses marijuana legally in a state like Colorado or Alaska could be at risk of termination should they test positive for the drug.

That’s different from alcohol. Truck drivers may be able to have a couple of drinks and be cleared to drive the following day as alcohol leaves the body faster. Drivers cannot have a blood alcohol concentration of 0.02 percent or greater, according to a Transportation Department handbook.

Yet marijuana will be off limits for the foreseeable future.

The Transportation Department remains the chief regulator on issues regarding controlled-substance testing for the trucking industry, Yadon said.

“To this end, the use of marijuana for medicinal or recreational purposes by any safety-sensitive employee subject to drug testing continues to be forbidden, regardless of whether its use is legal within a state,” he said.

A new recreational marijuana law is also set to go into effect in February 2018 in Maine. Though there has been some confusion with wording in the law indicating employers cannot penalize employees for a positive marijuana test, the law is still clear for drivers.

Companies are still viewing the matter with “zero tolerance” policies, but the confusion is causing some workers to take it as a legal green light to consume marijuana, said Brian Parke, president and chief executive of the Maine Motor Transport Assn.

“My understanding is that it is impacting some companies in their hiring, because not every driver understands that even if they have a prescription for medical marijuana, it doesn’t trump federal regulations. There’s some confusion,” Parke said.

All trucking companies operating under Transportation Department regulations continue to use urinalysis for pre- and post-employment drug screening. The Transportation Department clarified in June that despite state laws, its workplace drug and alcohol testing rule – Alcohol Testing Regulation 49 CFR Part 40 at 40.15(e) – does not authorize “medical marijuana” to be a valid medical explanation for a transportation employee’s positive drug result.

Employers in non-Transportation Department roles have been loosening their drug testing standards. In the past two years, 7 percent of employers have dropped marijuana from their pre-screening drug tests, while 3 percent have dropped it from all drug testing.

But trucking companies are going in the other direction, with more communications with drivers about the use of marijuana, and they are training supervisors to better identify impairment, Fulton said.

“I think almost all of our companies have revisited their drug and alcohol policies, and brought those more up to standards, as they see, based on this new environment,” he said.

Limited by Federal Laws and Testing Methods

Unlike with alcohol testing, there are no agreed-upon scientifically –validated testing methods to indicate marijuana impairment at a specific point in time. So even employers who want to give their workers the freedom to use a legal substance on their personal time have no valid means to accurately test for impairment on the job.

THC, the active ingredient in marijuana, is processed differently than alcohol and can stay in the system for up to a month. In Colorado and Washington, a person can be charged with a DUI if it’s revealed by a blood test that there are THC concentrations of 5ng/ml or higher. In Oregon, authorities may use officer observation and a urine test to determine if a driver is impaired.

Testing is a major issue, said Kathryn Russo, an attorney at the law firm of Jackson Lewis in Melville, N.Y., who specializes in workplace drug policies.

“That’s the big controversy because all employers have to go by is a drug test. And if you test positive, that means you have it in your system, even if you used it a week ago,” Russo said.

A few companies are already working on a breathalyzer-type device to measure marijuana impairment. As more states legalize marijuana, there will be a tipping point or “critical mass” at which the Transportation Department will be pressured to address the issue and determine better testing methods, Fulton said.

More acceptance of marijuana will force regulators’ hands into determining an “acceptable” level of marijuana chemicals in the system, much as a person can have an acceptable level of alcohol in their system, he said.

Yet the Transportation Department is unable to change its position unless the Drug Enforcement Administration or Congress downgrades marijuana to a Schedule II drug. Marijuana is currently considered a Schedule I drug under the Controlled Substances Act, which puts it in the same category as heroin and LSD.

The DEA reevaluated the classification of marijuana last year but kept it in Schedule I. The result hinged on marijuana having “no currently accepted medical use in treatment in the United States” and remains vulnerable to abuse, said DEA chief Chuck Rosenberg.

Until federal authorities reclassify marijuana, it will remain illegal under federal law and Transportation Department regulations, Russo said.

“I still think it’s a long way off. You can’t do marijuana ever, and even if you have a medical marijuana card, too bad. You’re not going to get a job as a DOT driver,” she said.