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PART III: Clearinghouse Practicality: The Changing Marijuana Landscape and the DOT Driver

If you are a motor carrier and are not registered for the FMCSA Clearinghouse, do so now.  The Jan. 6 implementation date is here.  As we have discussed in Part I and Part II, registering for and utilizing the Clearinghouse are important steps in the process.  As we move forward, however, compliance with the process of the Clearinghouse will be imperative.  Why?

By way of illustration, in 2017, the odds of winning Publishers Clearinghouse’s “$7,000 a week for life” sweepstakes were 1 in 1.7 billion.  In 2017, there were 450,000 police-reported crashes involving large trucks.  Of those, 4,237 were fatal, 344,000 involved injury.  Based on these figures and the U.S. population, an individual is 9 million times more likely to crash than win the Publishers Clearinghouse.  Don’t let the FMCSA Clearinghouse be a claimant’s Clearinghouse.  When it comes to protecting your company and drivers, control the things you can control – keep paperwork in order and make compliance with existing regulations a priority.  If these items are in order, claims can focus on facts, rather than malfeasance or misfeasance.

We are aware that positive drug tests are one of the items that must be recorded into the Clearinghouse within three days.  But what about marijuana testing? Is that still on the table given the changing landscape with the legalization of medical marijuana, states legalizing recreational marijuana, and the availability of so many hemp and CBD products?

The law is clear: commercial motor vehicle operators with a commercial drivers’ license subject to the FMCSA cannot utilize marijuana and operate a truck.  The provisions of the FMCSA detail the procedure for pre-employment drug testing in §655.41, which includes marijuana:  

§655.21   Drug testing.

(a) An employer shall establish a program that provides testing for prohibited drugs and drug metabolites in the following circumstances: pre-employment, post-accident, reasonable suspicion, random, and return to duty/follow-up.

(b) When administering a drug test, an employer shall ensure that the following drugs are tested for:

(1) Marijuana;

(2) Cocaine;

(3) Opioids;

(4) Amphetamines; and

(5) Phencyclidine.

(c) Consumption of these products is prohibited at all times.

Separately, §40.85 states DOT drug tests must test for five drugs or classes of drugs in a DOT drug test, including marijuana metabolites, cocaine metabolites, amphetamines, opioids, phencyclidine (PCP).  

The bottom line is that drug testing should continue to include testing for marijuana, subject to the FMCSA language, and if a positive test results, it should be reported to the Clearinghouse.  Likewise, the DOT Office of Drug and Alcohol Police and Compliance issued a Notice that the use of “medical marijuana” under a state law is not authorized to be a valid medical explanation for a transportation employee’s positive drug test result.  Marijuana remains a Schedule I drug on the Controlled Substances Act and its use for any purpose is unacceptable for an employee engaging in safety-sensitive functions.  

As a reminder, drug and alcohol tests should be conducted on the following occasions, and any positive result should be reported to the Clearinghouse within three days, as well as any follow-up and return to duty test results:

  • Random (382.305)
  • Reasonable suspicion (382.307)
  • Return-to-duty (382.309 and 40.305)
  • Follow up (382.311 and 40.307)
  • Pre-employment (382.301)
  • Post-accident (382.303)

Post-accident tests should be conducted according to company policy and according to the following guidelines:

TYPE OF ACCIDENT CITATION TO CMV DRIVER TESTING?
Human Fatality Yes Yes
Human Fatality No Yes
Bodily Injury with Immediate Medical Treatment Away from the Scene Yes Yes
Disabling Damage to Any Motor Vehicle Requiring Tow Away Yes Yes
Disability Damage to Any Motor Vehicle Requiring Tow Away No No

It is helpful to take a picture of the above chart and save it on your phone as a favorite picture.  If you find yourself in a predicament where you question whether a drug or alcohol test is needed, you can quickly reference the applicable FMCSA requirements.

**Note:  In recent days there have been reports of connectivity and technology issues associated with the Clearinghouse.  The FMCSA is aware of these issues and as it has been reported, the issues impact the website, but not the compliance or substantive matters associated with the new regulations.

For questions or comments regarding FMCSA compliance, including the new Clearinghouse, please feel free to contact Amy Tracy (atracy@setlifflaw.com) at 804-377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.

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