Marijuana Legalization Trends
Marijuana (Cannabis) has been experiencing a growth of acceptance in the past decade in the United States. As of March 2019, 33 states and the District of Columbia have passed laws that have broadly legalized marijuana use. On a federal level, cannabis is still classified as a Schedule I drug under the Controlled Substances Act, which means that the federal government views it as having no legitimate medical value.
Although the federal and state governments differ on the legality of marijuana use, the changes to marijuana laws that have already occurred mean that workplaces and employers need to clarify and potentially update their drug policies. One industry that must ensure proper regulation and policies is the transportation and trucking industry. With more states legalizing both recreational and medical marijuana, marijuana induced “driving under the influence” is a growing safety concern.
Marijuana and The Transportation Industry
The transportation and trucking industry are heavily regulated by the Federal Motor Carrier Safety Administration. Drivers who require a commercial driver’s license (CDL) need to meet certain medical requirements to receive a DOT medical card and to legally be allowed to operate a commercial motor vehicle (CMV). The drug testing protocols and procedures are set out in the Code of Federal Regulations (CFR) title 49, Part 382 and Part 40. Drivers can be drug tested in the following circumstances:
- Pre-employment drug screening
- Post-accident drug screening
- Random drug screening
- Reasonable suspicion drug screening
- Return-to-duty and follow-up drug screening after a positive test
If a driver fails a drug test, they may be immediately removed from operating a CMV as that compromises the safety of the operation. The employee may return to operating safety-sensitive functions after a successful completion of a return-to-duty evaluation with a DOT qualified substance abuse professional (SAP).
As the trend for marijuana legalization continues, there are some areas of concern that have been outlined by the American Trucking Associations (ATA):
- A recent study by the Insurance Institute for Highway Safety and the Highway Loss Data Institute found that in the first states to legalize the sale of recreational marijuana, there has been a 5.2% increase in crashes.
- There is no clear process at this point for how to measure driver impairment since marijuana stays in a person’s system for longer periods of time than, for example, alcohol. Canada approved a portable device when it legalized marijuana in 2018 that tests oral fluids. This device can be used by law enforcement, but not enough data exists regarding its use.
- There is often no clear indication of how much THC (which is the psychoactive compound in marijuana) is present in different strains of marijuana. Therefore, potency can vary greatly, a problem also encountered with “edibles” for those who prefer to ingest marijuana rather than smoke it.
- When it comes to medical marijuana, companies need to be aware of potential implications under the Americans with Disabilities Act (ADA). Some states that have legalized marijuana for medical uses specifically state in their laws that employers do not have to make accommodations, but other states have taken the opposite approach, and some states are silent on the issue.
- Companies in states with legalized medical and/or recreational marijuana need to make sure they have clear company policies regarding its use.
Employer Actions to Mitigate Risk
To ensure proper safety and health for all transportation employees, collaboration with an occupational health program may be the best and most cost-effective solution to the growing challenge of marijuana use by these workers. A comprehensive pre-employment and periodic screening program, drug and alcohol screening, and injury triage and case management can ensure that employees are operating their CMV’s safely and legally.