It has been a long week and you’re back home taking some well-deserved time off from work. Your home state has legalized the recreational use of marijuana; so, when a friend offers you some to relax one evening you try it. Or maybe you try a CBD drink, gummy, or another hemp derivative product you bought at a local store because the advertisements say they can help you sleep without any psychoactive effects. Unfortunately, many truck drivers across the country are losing their jobs based on these same innocuous situations, adding to a shortage of drivers at a time when the country is already trying to address supply chain issues.

Employers are testing employees regularly to meet their obligation to ensure they are not putting impaired drivers on the roads, and a positive test result almost always results in immediate termination. An employer must receive a negative drug test result before permitting a CDL driver to operate a CMV (49 CFR §382.301), those CDL drivers are also then subject to random testing throughout the year (49 CFR §382.305), and drug tests may also be required after specified types of accidents (49 CFR §382.303).

Unfortunately, a problem the industry faces is that the only test currently available for marijuana can lead to a positive test result up to a month after consumption, long after any effects have worn off and the driver is no longer impaired. Impairment tests, such as those utilizing functional near-infrared spectroscopy, are under development but far from being used as a standard practice. Moreover, unlike alcohol testing, there is no consensus on determining marijuana impairment, or how to measure it. This lack of a test for impairment, rather than exposure, is not only needlessly taking many qualified drivers off the road, but would-be drivers are prevented from the application process because of the amount of time they need to test negative.

A driver terminated due to testing positive for marijuana may still be able to return to the workforce, but many do not. Returning from a positive drug test can be daunting and time-consuming, even if marijuana is legal in your state or your test result is from using a CBD product. A return requires an employer sponsor, an evaluation process that includes a review by a substance abuse professional, and several months for the substance to no longer be detectable on a test. In addition, employers, always mindful of potential litigation, are hesitant to employ a driver with a positive test on their record. Of course, employers should also be mindful of what they are allowed to inquire into. For example, employers in Virginia are prohibited from requiring applicants to disclose simple possession arrests, criminal charges, or even convictions during the hiring process. Va. Code Ann. § 19.2-389.3

Drivers need to be educated to ensure they understand that they cannot consume marijuana, regardless of a state’s legalization or a driver’s medical marijuana card. Ultimately, their profession is safety sensitive and regulated by the U.S. Department of Transportation, and at this time there is a complete prohibition on marijuana, a Schedule 1 drug under federal law. See 49 CFR Part 40. As CBD products may also lead to a positive test result, drivers are advised to refrain from those products as well.

To prevent confusion, many states that have legalized marijuana have put in place laws to ensure federal regulations pertaining to employment are not contradicted by state law. For example, the law that makes cannabis legal in Virginia and provides employees protections for medicinal usage, also states that employers are not required to act in a way that could lose them a federal contract or federal funding. See Va. Code § 40.1-27.4(c).

Please contact us if you need assistance dealing with cannabis-related issues. Our firm strives to not only provide the latest information for the trucking industry to navigate the ever-changing rules regarding marijuana but also provide guidance for best practices as they draft drug policies and procedures. If you have questions about this article, please contact Mike Jacquez (mjacquez@setlifflaw.com) at 804-377-1262 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.