Drug Testing Raises Issues for Cold Chain Transportation
With wider legalization of medical and recreational marijuana, cold chain executives find themselves increasingly focused on the topic, particularly in regard to drug testing. The issue is complicated, especially given that more and more states and cities are legalizing the use of recreational and/or medical marijuana. Today, 30 states plus the District of Columbia and two cities – San Francisco, California, and Boulder, Colorado – have legalized the use of the substance. Yet each has different laws considering its use and employer testing of its use. Meanwhile, the federal government has not legalized the drug. “The topic is especially complicated for companies that have operations in all 50 states, given that there are so many different laws,” remarks Kathryn Russo, Principal in the Long Island, New York, office of Jackson Lewis P.C. “It’s very challenging to be a multi-state employer in this regard.” While most employers contract with a service provider to conduct drug testing, the issue of drug testing is further complicated when determining at what point testing should be performed and what type of drug test should be used. “There is pre-employment testing of an applicant, reasonable suspicion testing of current employees who are suspected of using drugs or alcohol at work, random testing, and other types of testing, depending upon the type of industry and employer and how much testing they want to do,” Russo points out. Testing done by the Department of Transportation (DOT), a federal agency, is very specialized. “Given the number of agencies under the DOT, each agency has its own requirements,” she says. On top of that, the rules that apply to DOT employees are different from nonDOT employees. “A non-DOT employee would be covered by state and local laws, which vary,” she adds. Some states, for example, allow an employer to terminate an employee the first time he or she tests positive. Other states do not. Some states may also offer the employer the opportunity for employee/applicant treatment. “By contrast, the DOT does not enforce disciplinary consequences,” Russo says. “Instead, if someone tests positive, DOT says the employer must remove that employee from performing safety sensitive jobs. In the case of a trucking company, it must remove the truck driver from performing driving functions, but the DOT won’t tell the company whether or not to terminate that person. Termination is the employer’s decision.”
The setting of standards is equally complicated. According to Russo, any national standards would have to focus on those provided by the DOT or state agencies that have federal regulations. “These are federal laws that regulate drug and alcohol testing of federal employees,” she says. “If the employee is not covered by federal regulations, and the employer must adhere to state and local laws, it’s important to realize that each state and local law is different.” One example is randomly testing for drug and alcohol use. “Random testing is not permitted in all states and cities,” she warns. And the issue will not get easier with today’s trend toward ruling in favor of medical marijuana users. “Years ago, we used to be able to tell employers that use of medical marijuana was illegal under federal law,” she says. “But now that medical marijuana has become so popular, we are moving in a different direction. The courts are starting to rule against employers.” Case in point: the Americans with Disabilities Act states employers are required to have direct dialogue with applicants who are disabled and might need to use medical marijuana. “The law states that an employer cannot discriminate against someone just because they use medical marijuana, which complicates the issue further for employers,” Russo says. The issue may have broader implications. Russo points to a recent federal case in Connecticut that held it is employment discrimination if an employer does not hire a medical marijuana user. “You have a lot of employers in this industry who are concerned about statutes where people have the right to use medical marijuana because no one is focusing on the safety issue,” she asserts. “The few cases that have been decided so far have not involved applicant employees in dangerous jobs. We need to see what’s going to happen when someone in a really dangerous job comes along and wants to use medical marijuana and the employer says no. Then we will have a law suit because there are laws protecting the use of medical marijuana.”
While the issue regarding drug testing for medical and recreational marijuana use is complicated, when it comes to employers of drivers of commercial motor vehicles (CMV), it becomes more clear-cut. By definition, CMV drivers are DOTregulated drivers of vehicles weighing 10,001 pounds and above. “There is an additional category of commercial licensed drivers (CDL drivers) that is subject to DOT drug and alcohol testing requirements,” says Prasad Sharma, Partner, Scopelitis, Garvin, Light, Hanson & Feary P.C. “Simplistically, those are drivers of vehicles weighing 26,001 pounds and above and that includes drivers of tractor-trailers.” Simply put, the Federal Motor Carrier Safety Regulations are the body of regulations that generally prohibit the use of marijuana. “Specifically, 49 C.F.R. 391.11(b)(4) requires a driver of a CMV to be physically qualified to operate a CMV and 49 C.F.R. 391.41(b)(12) states, as part of those physical qualifications, the driver cannot ‘use any drug or substance identified in 21 C.F.R. 1308.11 Schedule I,’” Sharma says. “This refers to Schedule I under the federal Controlled Substances Act and includes marijuana.” Additionally, 49 C.F.R. 392.4 prohibits a CMV driver, while on duty, from possessing or being under the influence of a Schedule I drug (includes marijuana). “In addition to the general prohibition on use, drivers requiring CDLs are also subject to DOT drug and alcohol testing rules (49 C.F.R. Part 382),” Sharma points out. This testing requires: • Pre-employment testing before allowing a driver to drive (requires a verified negative result from a medical review officer or a consortium/third party administrator) • Post-accident testing (where accident involves loss of human life, bodily injury with immediate medical treatment away from the scene and driver was issued a citation for traffic violation, or disabling damage to any vehicle requiring a tow away and the driver was issued a citation for traffic violation) • Random testing (for 2018, 25 percent of the pool of DOT-regulated drivers has to be randomly tested for drugs with testing being unannounced), • Reasonable suspicion testing (can only be initiated by trained supervisor or company official “based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver”) • Return-to-duty-testing (if a driver has a verified drug test, they must be referred to a substance abuse profession (SAP) and undergo the recommended treatment and then must test negative in order to be returned to driving activity). It is commonplace for carriers to contract with third party administrators (TPAs) to handle their drug and alcohol testing program and compliance with the procedure mandated by DOT in 49 C.F.R. Part 40. While the law remains fairly clear for truck drivers, Sharma notes that state legalization of recreational or medical use of marijuana can create confusion for drivers. “That confusion can lead to their disqualification – particularly for those believing their state authorizes them to use marijuana,” he says. In addition, the Federal Motor Carrier Safety Administration has finalized a rule that will stand up a centralized database known as the drug and alcohol clearinghouse in January 2020, that requires reporting of failed DOT drug tests to the clearinghouse and require employers to check the clearinghouse before hiring. For applicants that fail a drug test today, Sharma warns it’s possible for them to move on to another company and become a driver once they can pass their pre-employment test. “With the clearinghouse, that initial fail will be reported by the prospective employer and the applicant would ostensibly have to go through the SAP recommended treatment and the return-to-duty process before another carrier could hire him/her,” he says.