The Responsibilities of the Department of Transportation Drug and Alcohol Division
The department provides advice regarding international and national drug testing to the Secretary. As the principal advisor, the department is responsible for providing advice regarding alcohol and drug testing of transportation employees classified as safety-sensitive. Regulations are published to provide an official interpretation. This includes how tests are conducted, evaluating employees, and treatment procedures. The department defines the necessary procedures for employees with drug violations.
The Controlled Substances Act
When the Farm Bill passed in 2018, hemp was no longer classified as marijuana by the Controlled Substances Act. The bill additionally stated any products derived from hemp with a THC or tetrahydrocannabinol content a maximum of 0.3 percent are not controlled substances. THC is responsible for the majority of psychoactive effects from marijuana. All CBD or cannabidiol products containing more than 0.3 percent THC are still considered marijuana according to the Controlled Substances Act.
DOT Office of Drug and Alcohol
The DOT office has issued a compliance notice regarding the use of CBD products by employees of the Department of Transportation. The employees requiring drug testing for safety include school bus drivers, transit vehicle operators, ship captains, pilots, aircraft maintenance personnel, pipeline emergency response, truck drivers, security personnel for fire-armed transit, and train engineers. All of these employees should be aware DOT is testing for marijuana as opposed to CBD.
The Labeling of CBD Products
Numerous CBD products may contain misleading labeling. The THC level stated may be lower than the percentage actually contained in the product. THC levels contained in CBD products are not currently being certified by the FDA or Food and Drug Administration. This means the federal government is not guaranteeing the accuracy of CBD labels. The FDA is warning individuals using CBD to be careful which products are purchased and used.
According to the FDA, CBD is illegal when added to any food product or if the label states the product is a dietary supplement. Warnings have been issued to several companies with higher levels of THC than shown on the label. The Department of Transportation has not authorized any employees using Schedule I drugs for any reason including marijuana. When a drug test is positive, the use of CBD for medical purposes will not be accepted as a legitimate medical reason.
The verification of drug tests by medical officers will receive a positive confirmation at the official cutoffs. Any employee of the Department of Transportation using marijuana is breaking the drug testing regulations. The department is recommending extreme caution for all employees using products containing CBD because this may lead to a positive result of a drug test. It is illegal for all safety-sensitive employees to use marijuana.
The Contents of the Department of Transportation Compliance Notice
The document is not applicable to the general public in any way. The document was released to offer clarity regarding the current requirements for employees of the Department of Transportation for the purpose of protecting occupational health. The notice is not legally binding, and will not be used by the department as grounds for administrative penalties such as affirmative reinforcement. Adhering to the compliance notice is on a voluntary basis. All safety-sensitive employees are expected to comply with the notice.
The Department of Transportation Five-Panel Drug Test
Warning letters have already been sent to several CBD product manufacturers. The product labels contained unproven, misleading or false claims. An investigation is currently being conducted by the FDA regarding CBD products containing high levels of THC, pesticides and heavy metals. According to the Department of Transportation, the testing of CBD levels in several products has revealed the CBD level stated on the product label is incorrect.
The Department of Transportation conducts a five-panel drug test. Every employee may be required to provide a urine sample for analysis. The test determines the presence of specific controlled substances including methamphetamines such as MDMA, MDEA and MDA, amphetamines, PCP, opiates, and marijuana. Testing is applicable for all drivers of commercial motor vehicles including aircraft, armed transit vehicles, buses, locomotives, subways and ships.
The use of products containing CBD for medical purposes is not considered a valid reason for a positive test result. Any employee using a CBD product containing more than 0.3 percent THC will be above the passing cutoff level. When an employee receives a positive result for a drug test, the designated representative for the employer is required to suspend the driving privileges of the individual immediately. Once removed from duty, the employee is unable to drive a commercial motor vehicle on public roads.
To return to work, a specific process must be completed by the employee with a certified or licensed SAP or substance abuse professional. Once removed, the driver is required to complete drug testing prior to returning to work. The driver must complete a minimum of six additional tests during the first year after returning to duty to ensure occupational health. Testing may be prescribed by the SAP for a maximum of five additional years.
Although the Department of Transportation mandates marijuana testing, CBD testing is not required. One CBD product has currently been approved by the FDA. The drug is for the treatment of specific types of epilepsy. The name of the drug is Epidiolex.
Supervisors require training to identify the symptoms and signs of drug and alcohol use. Strong testing programs for alcohol and drugs are required for all Department of Transportation employers. All safety-sensitive employees in violation of the rules for alcohol and drug testing must be immediately removed from duty. The rules for alcohol and drug testing are mandatory for all Department of Transportation commercial drivers and their employers.
The minimum requirement for drug testing established by the FMCSA is half of the positions for drivers. The minimum for random testing for alcohol is 10 percent. A specific process is required for any safety-sensitive employee violating a drug or alcohol test. A violation occurs when an employee refuses to take a drug test or fails to pass the test.
The Three Key Points of the Department of Transportation
Point One: The Department of Transportation does not conduct drug testing for CBD, only marijuana.
Point Two: Department of Transportation employees are encouraged to be careful which CBD products are purchased. In some instances, the THC content is higher than what is shown on the product label. THC levels are not currently certified by the FDA. The federal government does not guarantee the THC content stated on the label is accurate. The FDA is cautioning all consumers to be aware any CBD product stating it is a dietary supplement on the label or added to food is currently illegal.
Point Three: According to Part 40 of the Drug and Alcohol Testing Regulation of the Department of Transportation, using Schedule I drugs for any reason is unauthorized. This includes marijuana. The use of CBD for any reason is not an acceptable excuse for failing to pass a drug test. Even if the employee states the only product being used contains CBD, the drug test will be confirmed as positive. The use of marijuana by any safety-sensitive employee of the Department of Transportation is unacceptable.
The Department of Transportation recommends all safety-sensitive employees use caution when using CBD products. These types of products may result in a positive result for a drug test if the THC level is above 0.03 percent. Safety-sensitive employees are required to comply with drug testing requirements according to Part 40 of the 49 CFR.
To view the official DOT CBD Notice (issued 2/18/2020 @ 10am), please visit: https://content.govdelivery.com/accounts/USDOT/bulletins/27bd19f