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PCCA Journal|2 nd Quarter 2011 21

I

t’s something all companies and governmental agencies who employ drug testing are han-dling with kid gloves: medical marijuana. The consequences of an employee using medical or any other mood or mind altering drug are different for each company.

In a recent online article posted on the Society of Human Resources Manage-ment website, Portland, Ore., employ-ment attorney Richard Meneghello made several valid points about observing employees to assess impairment. He also pointed to a frightening 1985 Stanford University study. In the study, airline pilots consumed a low-grade marijuana cigarette before entering a flight simu-lator. The flight simulator involved a stressful scenario, and the test resulted in numerous crashes. Although all the pilots reported no residual effects of the drug the next day and had no reserva-tions about flying, they crashed the simulator again.

“As long as there’s information like that out there,” Meneghello said, “em-ployers aren’t going to be interested in climbing the slippery slope between an employee’s condition within five sec-onds, 24 hours, or two weeks of inges-tion—all it takes is one catastrophe.” Recently, the Department of Justice (DOJ) issued guidelines for federal prosecutors in states that have enacted laws authorizing the use of medi-cal marijuana. But the Department of Transportation (DOT) has its own ideas on the matter. Director of the Office of the Secretary of Transportation, Office of Drug and Alcohol Policy and Compliance

Jim L. Swart’s message is clear: DOJ guidelines will have no bearing on the DOT’s regulated drug-testing program. In a public letter posted on the DOT website, Swart addressed the issue. “We have had several inquiries about wheth-er the DOJ advice to federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety-sensitive transportation employees—pi-lots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship cap-tains, and pipeline emergency response personnel, among others,” he said. “We want to make it perfectly clear that we will not change our regulated drug test-ing program based upon these guidelines to federal prosecutors.”

The DOT’s Drug and Alcohol Test-ing Regulation—49 CFR Part 40, at 40.151(e)—does not authorize medical marijuana under a state law to be a valid medical explanation for a transporta-tion employee’s positive drug test result. Medical Review Officers will not verify a drug test as negative based upon infor-mation that a physician recommended that the employee use medical marijua-na.

Marijuana, medical or otherwise, remains a drug listed in Schedule I of the Controlled Substances Act. This renders it unacceptable for any safety-sensitive employee subject to drug testing under the DOT’s drug testing regulations to use marijuana in any form.

“We want to assure the traveling pub-

lic that our transportation system is the safest it can possibly be,” Swart further clarified.

Beyond the level of testing, the bottom line is that levels of impairment vary from individual to individual and are hard to prove. Even in cases when those shown not to be impaired have marijua-na metabolites in their system, experts say best practices require termination based on a zero-tolerance policy, not actual impairment. In fact, high courts in both California and Oregon have backed up employment decisions in cases where employees tested positive for medical marijuana. The law clearly recognized that the use of medical marijuana doesn’t undercut an employer’s right to dictate drug-use standards for its work-force.

Many employers are concerned that applicants and employees with drug or alcohol abuse histories may be protected from discrimination with regard to drug testing under the Americans with Dis-abilities Act. The law applies to employ-ers with 15 or more employees and while current users of illegal drugs are not protected, alcoholics and recovered drug addicts are. This means that an em-ployer may be required to accommodate employee recovery treatment plans. However, employers and the DOT can breathe a collective sigh of relief. This ADA Act does not prohibit employers from taking action consistent with their policies against individuals who test positive, and drug tests that are compli-ant with state and federal regulations are not considered medical examinations

DOT and Medical Marijuana

By Brandon G. Phillips

Continued on page 22

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