An unfortunate reality for businesses of any size is how to detect and handle drug use by employees. In the transportation industry where alertness and quick reflexes are essential to avoid every day hazards faced on America’s highways, appropriate testing policies and procedures are essential to any size company’s ability to survive in an environment that is becoming increasingly more litigious. The shortage of qualified drivers across the country is well known and companies in need of drivers may consider hiring individuals with a history of prior drug use or may retain an employee even after illicit drug use has been discovered. In the article below, we discuss the implications of legalized marijuana on the trucking industry, new testing methods and some case law to consider when formulating policies for how to deal with employees on prescription medications.
As of July 2015, twenty three states and the District of Columbia have legalized marijuana in some form. Alaska, Colorado, Oregon, Washington, and the District of Columbia have legalized marijuana for recreational use by adults 21 and older. The United States Department of Transportation (“DOT”), however, is not accommodating the legalization trend regarding the use of medicinal or recreational marijuana. On the Federal level marijuana remains illegal as a Schedule I substance. Accordingly, DOT regulations state “no driver shall be on duty and possess, be under the influence of, or use, any substance set forth in Schedule I of the regulations, any amphetamine, any narcotic drug or derivative thereof” or “[a]ny other substance, to a degree which renders the driver incapable of safely operating a motor vehicle” (See 49 C.F.R. § 392.4).
Even after the Department of Justice issued guidelines in 2009 for Federal prosecutors to not pursue “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medicinal use of marijuana,” the DOT responded that “we will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.”
In 2012, the DOT’s Office of Drug and Alcohol Policy and Compliance reiterated its strong position on the use of marijuana by “safety-sensitive transportation employees,” which includes truck drivers, by stating, “[w]e want to make it perfectly clear that the state initiatives permitting the use of marijuana for so-called ‘recreational’ purposes will have no bearing on the Department of Transportation’s regulated drug testing program.” The DOT further noted its Drug and Alcohol Testing Regulation “does not authorize the use of Schedule I drugs, including marijuana, for any reason.” Id.
As we are all well aware, drug testing for truck drivers is federally mandated and can take place before employment, randomly throughout employment, and after any accident. Currently, DOT standards only require a urine test for driver drug screening programs. For marijuana users, this test detects the presence of marijuana metabolite THC which can remain in the body for days and weeks after use and long after the psychoactive effects of marijuana are gone.
How long the urinalysis test can detect marijuana in a person depends on multiple factors including the dosage, frequency, last time of use and the individual’s metabolism. According to the National Institute on Drug Abuse and the National Health Service, in chronic marijuana users THC can be detected anywhere from a week up to a month after the use stops. Even if an individual used marijuana just once, the test can detect THC metabolites in urine for several days after use. Further complicating the matter is that marijuana’s potency has more than tripled in the past two decades.
Truck drivers with any trace of marijuana in their system are considered impaired. For drivers living in or passing through states where marijuana is legal, access to marijuana and the temptation to use is greater than ever before. A poor choice days or even weeks before an accident, however, could have disastrous ramifications for them and their employer were THC metabolites detected in their system, even if the psychoactive effects had long since disappeared.
Even if not involved in an accident, violating the marijuana prohibition (or any other drug prohibition) has a serious impact on truckers because the regulations require their employers to “immediately remove the employee involved from performing safety-sensitive functions [which includes driving a truck].” (See 49 CFR Part 40 Section 40.23(a)). Drivers cannot return to work until they complete a DOT-required return-to-work program.
While a urine test can detect marijuana in a person for days or even weeks after use stops, not everyone is satisfied with this detection method. The American Trucking Associations (“ATA”), the largest trucking lobby in the nation, wants hair-follicle testing to become the new standard for screening drivers and job applicants. Unlike a urine test, hair-follicle tests can detect drug use over a 90-day period. The ATA is asking Congress to pass the Drug Free Commercial Driver Act. This Act would direct the DOT to recognize hair-follicle analysis as an alternative to urine testing for motor-carriers. If the Act passes truck drivers with positive test results could find them being reported to subsequent employers eliminating the possibility of passing a urine test at a later date. Hair follicle testing is also being considered as an alternative drug testing method for federal employees, which could eventually lead to the DOT accepting the practice, even without Congress’s approval.
Recreational marijuana use aside, truck drivers with legitimate prescriptions for medicinal marijuana can find little relief when it comes to following their doctor’s orders and keeping their job. Earlier this year the District Court in Colorado, in Steele v. Stallion Rockies Ltd., 2015 WL 3396417 (D. Colo.), affirmed an employer’s motion to dismiss a lawsuit by a truck driver who suffered from lumbar degenerative disease and who was a medical marijuana participant listed in the Colorado medical marijuana registry. Forty-seven year old Robert Steele was fired for violating his company’s drug and alcohol policy that prohibited off-the-job use of controlled substances interfering with job performance and testing positive for such substances at work. Affirming the Magistrate Judge’s Recommendation, the Court found the employee did not achieve protected status under either federal or state anti-discrimination laws that protect disabled individuals simply by using medicinal marijuana. As a result, his termination for using marijuana off-the-job did not constitute discrimination because anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.
While Robert Steele was not successful, others in the trucking industry have been able to rely on their state’s anti-discrimination laws to protect their use of prescription medication. Recently, in Clipse v. Commercial Driver Services, Inc., 2015 WL 5023388 (Wash. Ct. App.), the Washington Court of Appeals held an employer violated the Washington Law Against Discrimination (“WLAD”) for refusing to hire a commercial truck driver who was taking a prescribed narcotic. Ronald Clipse was offered a job as a driving instructor for a commercial driving school and asked to undergo a physical examination to determine whether he could obtain a medical examiner’s certificate qualifying him to drive a commercial vehicle. The physical examination revealed Clipse was taking the narcotic drug methadone for chronic pain from a torn rotator cuff. Clipse was told the driving school could not employ him because he was taking methadone and the company had a “no tolerance” drug policy. The Clipse Court held that under Washington state law the side effects of a prescription drug may constitute a disability. Since there was evidence methadone had impairing physical side effects, the Court found its use by the employee to treat his condition constituted a disability under WLAD. Even though the DOT provides that anyone taking methadone is not medically qualified to drive, the Court affirmed Clipse’s damages award of over $80,000.
Given the diverging outcomes for the employers in Clipse and Steele, there is understandable uncertainty when it comes to an employer’s choice in how to handle a driver’s prescription medication. The good news for employers is that at least when it comes to legalized marijuana use – recreational or medicinal – the courts have largely upheld the employer’s decision to terminate the employee. Looking beyond the trucking industry, state courts in Oregon, California, and Colorado have made it clear that state laws legalizing marijuana for medicinal purposes do not require employers to accommodate employees who use medicinal marijuana. (See Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 230 P.3d 518 (Or. 2010); Ross v. RagingWire Telecommunications Inc., 174 P.3d 200 (Cal. 2008); Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).
The takeaway for truck drivers is that marijuana use in any form – medicinal or recreational – remains off limits.
(This article was originally published in DRI In Transit)