Medical Marijuana – DOT And Non-DOT Employee Drug Testing Programs

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Employee Drug Testing

Part Two - Factors Employers Need To Consider

Employers need to consider several factors when incorporating testing for DOT and/or non-DOT within their substance testing programs. 

The Federal Motor Carrier Safety Administration (FMCSA) has dealt with several inquiries about whether the Department of Justice’s (DOJ) advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety-sensitive transportation employees.  Pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel, among others, fall under the DOT guidelines.

On October 22, 2009, Jim Swart, Director, Office of the Secretary of Transportation, stated “We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program.  We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.”  The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(3) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

In other words, if you are an employer that mandates (DOT) drug testing under the regulations of 49 CFR Part 40, these state laws in regards to the use of “medical marijuana” have no affect on your current employee drug testing program.

The tougher issues come from employers with non-DOT programs that conduct business within the fourteen (14) states and District of Columbia that have legally approved the use of medical marijuana.  Each employer will need to establish policy and guidelines when a candidate/employee reveals that they have a legitimate medical need to use marijuana and a certificate to prove it.  This issue is of great concern when the certificate holder fails a drug test. 

Employers need to think about developing a policy now, instead of dealing with the ramifications after the fact.  EBI’s knowledgeable staff can help you develop a policy that is both compliant and cost-effective.