The federal government recently advocated for rescheduling marijuana from a Class I drug to a Class III drug. This may mean that those operating in safety sensitive positions, e.g. truck drivers, airline pilots, etc., may not need to be tested for marijuana.
What follows is a summary of an article by “Marijuana Moment”. We emphasize, in this blog post, those aspects of the article that are related to employers who have employees operating in safety sensitive positions. We suggest to all employers that safety sensitive positions include many more than those operating a 26,000-pound truck or an airplane. In this article the author defines safety sensitive is one in which job performance can affect the safety of the employee and others. If you are an employer, how many of your jobs would fit this description?
NTSB said in a press release on Tuesday that the Biden administration’s proposed move of cannabis to Schedule III of the Controlled Substances Act (CSA) “could imperil federally required drug testing for airline pilots, truck drivers, and many others in safety-sensitive positions.”
“Moving marijuana to Schedule III without taking steps to ensure that marijuana testing remains within the scope of pre-employment, random, reasonable suspicion, and post-accident drug testing would create a safety ‘blind spot,’” the board said.
“The NTSB is concerned that the proposed rule to move marijuana to Schedule III of the CSA would, upon becoming effective, immediately prohibit continued testing of safety-sensitive transportation employees for marijuana use” under relevant regulations, the comment submitted to the federal docket said, “because the HHS-certified laboratories used for such testing are not authorized to test for Schedule III controlled substances.”
“This would mean that airline pilots, airline maintenance workers, bus and truck drivers, locomotive engineers, subway train operators, ship captains, pipeline operators, personnel transporting hazardous materials, and other safety-sensitive transportation employees would be prevented from being tested for marijuana use,” NTSB claims.
Many of those positions are regulated by the Department of Transportation (DOT).
At a separate hearing on Tuesday, NTSB Chair Jennifer Homendy submitted written testimony highlighting the board’s concerns about rescheduling.
“As you know, the NTSB has long been concerned about impairment in all modes of transportation,” she said. “This includes our concerns about marijuana use among crewmembers and other safety-sensitive personnel in rail. We believe there will be a serious negative impact on transportation safety if the DEA moves forward with rescheduling without addressing the issues further detailed in our comment.”
ATA said it intended to engage the Department of Justice (DOJ), the Department of Health and Human Services (HHS) “and other federal partners to ensure that any change in the law regarding the status and legality of marijuana use is accompanied by an explicit allowance for the testing of marijuana use by DOT-regulated safety-sensitive workers.”
“I would expect my drivers to not drink alcohol at work, take NyQuil before a shift or a prescription that would interfere with driving, or get behind the wheel with lack of sleep,” the commenter wrote, “and the same would apply to those who take cannabis.”
As more states legalize marijuana, a federal report published earlier this year showed that the number of positive drug tests among commercial drivers fell in 2023 compared to the year before, dropping from 57,597 in 2022 to 54,464 in last year. At the same time, however, the number of drivers who refused to be screened at all also increased by 39 percent.
The record-high number of refusals came as the transportation industry faces a nationwide shortage of drivers, which some trade groups have said has only been made worse by drug testing policies that risk flagging drivers even when they’re not impaired on the job.
Current federal law mandates that commercial drivers abstain from cannabis, subjecting them to various forms of drug screening, from pre-employment to randomized testing.
“Want to smoke weed at home? Smoke weed at home. If it’s legal, fine,” ATA President Spear said at the time. “Do not get behind the wheel of an 80,000-pound vehicle. We need to have strong standards, and we need to enforce the law.”
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at randisiandassociates.com
