The legalization of marijuana in several states over the past few years has done little to create a standardized method of calculating and determining impairment. Although researchers are able to collect more information regarding marijuana use and impairment, they are still far from finding that magical number that distinguishes impairment from sobriety, like they have with a blood alcohol content. There is no current equivalent to the 0.08% BAC that was established for alcohol consumption.
Worse still, the federal government has yet to get on board with medical and recreational marijuana, despite several states doing so.
For many companies who solely operate within the scope of a single state, generally, they must only worry about state laws with regards to marijuana guidelines within the workplace. However, for companies in industries like transportation, navigating the parameters can be a lot more complex since their businesses can take them across multiple state lines where a state laws run at odds with another state’s laws or the federal government’s laws, confusing operations.
More than half of the states (currently 33 states and counting) have legalized medical marijuana within their boundaries. Multiple studies have shown the benefits it offers many pain-inflicted patients, and how it can help them regain some form of quality of life. Yet, without the federal limitations lifted, this puts employers in a difficult position.
The Department of Transportation (DOT) is pretty clear about where it stands on accepting medical marijuana users. The official website offers a “DOT ‘Medical Marijuana’ Notice” which states the following:
The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.
That section states:
- 40.151 What are MROs prohibited from doing as part of the verification process?
As an MRO, you are prohibited from doing the following as part of the verification process:
(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)
Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.
As such, employers are left with two options when managing their employees who use medical marijuana: either 1) ask the person to stop taking their medication in order to comply with DOT regulations, or 2) terminate the employee following a positive drug test. Given the current climate and considering what we know about the benefits of marijuana use, the current options under DOT seem outdated to say the least.
To make the situation even more complicated, courts are allowing for termination cases to be challenged, even though many states have protections in place to keep employers from liability. These states created medical marijuana statutes that attempt to safeguard employers in the event of firing employees who test positive for marijuana.
In states such as Delaware and Connecticut, the courts have expanded workplace protections for medical marijuana users. In the case of Wild v. Carriage Funeral Holdings, Inc. the New Jersey Supreme Court is currently considering upholding an appellate decision that held a terminated employee could contest his termination for a positive drug test under New Jersey’s Law against Discrimination.
So, what are employers to do? Using their discretion doesn’t seem to be working or giving any direction. Until the federal government decides to adjust their views on marijuana being a Schedule I drug, it seems that they can only continue to juggle the state and federal workplace laws. States where medical marijuana is legal should try to determine if they want to allow its use in non-safety-sensitive positions and perhaps tailor post-accident testing for only when there is reasonable suspicion of actual impairment. Guidelines for determining actual impairment should be added into the training of safety managers.
In any event both employers and employees are in a tricky spot. Maybe it won’t be the scientists who figure out how to determine impairment, but rather a safety-conscious Human Resources manager of a trucking company. That’ll be interesting to wait and see.