Medical Marijuana and the DOT

U.S. Department of Justice Guidance on Medical Marijuana and Its Impact on DOT Drug Testing

On October 19, 2009, the U.S. Department of Justice (DOJ), Office of the Deputy Attorney General, issued a memorandum providing guidance to prosecutors in states that have authorized the use of medical marijuana. Because laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting states and among local jurisdictions within those states, DOJ felt that rather than develop different guidelines for every possible variant of state and local law, uniform guidance to federal investigators and prosecutors in these states would provide consistent and uniform enforcement. To a large degree, the memorandum was intended to address the shortfall of resource allocation in the field.

Part of the memorandum states, “The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department's efforts against narcotics and dangerous drugs, and the Department's investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”

This, of course, generated a myriad of questions from transportation employers, employees, and the general public. The core of the questions was does this guidance in any way now “authorize” or sanction the use of medical marijuana and how are employers to treat employees in those states that have legalized medical marijuana?

The DOT Office of Drug and Alcohol Policy and Compliance in a recent statement indicated that they have also received several inquiries about whether 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 – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel, among others.

DOT made it clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. DOT will not change their regulated drug-testing program based upon these guidelines to Federal prosecutors. The Department of Transportation’s Drug and Alcohol Testing 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 transportation employee’s positive drug test result.

That section states:
§ 40.151 What are MROs prohibited from doing as part of the verification process?
As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” DOT also noted that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

So much for the legal parameters surrounding this issue. What is the average employer to do when he/she is challenged by an employee that a drug positive result should be overturned because the employee was told by a physician to us marijuana and that even the Department of Justice is no longer considering it a “crime”. Well, for starters, you should try to nip this issue in the bud. Ensure that your drug and alcohol policy (if it does not already state this) specifically indicate that use of “medical marijuana” is not an acceptable medical explanation for a drug positive result. You may even want to state that even if the employee has “not been charged” with the crime – use of marijuana – that still does not supercede the DOT position. Any use of marijuana, even if it is unintentional – someone slipped me marijuana-laced brownies – is not an acceptable medical explanation.

Going back to the DOJ memorandum, we need to look at the following: “Indeed, this memorandum does not alter in any way the Department's authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not "legalize" marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.”

Bottom line is that the DOJ memorandum has absolutely no impact on the DOT drug and alcohol program nor does it impact on an employer’s enforcement of the current drug testing requirements.