Recent changes in state marijuana laws and Federal Motor Carrier Safety Administration (FMCSA) rules related to the use of synthetic opioids have raised some serious questions among commercial drivers and their employers. Which drugs are allowed with a prescription? Which are not? What about when state and federal laws contradict one another?
This article attempts to answer these questions so that businesses employing commercial drivers can take further steps to protect their customers and employees, help make roads safer, and shield their companies from potential liability issues. The following information is not to be used as legal advice; readers should consult their FMCSA compliance officers before implementing any related policy changes.
The Marijuana Question
Currently 29 states in the U.S. allow the use of marijuana for medicinal and/or recreational purposes. Medicinal marijuana is legal in all six New England states, and three of them — Maine, Vermont, and Massachusetts — have also recently passed laws legalizing recreational marijuana use. However, federal laws and regulations prohibit all use of medical and recreational marijuana, whether legal under state law or not. Due to the contradiction between state and federal marijuana laws, the New England Fuel Institute (NEFI) has received a number of inquiries on how this affects CDL drivers in states where marijuana use is legal.
The answer is simple: federal law and U.S. Department of Transportation (DOT) rules prohibit the use of marijuana for any reason. The United States Controlled Substances Act classifies marijuana as a Schedule I drug, and DOT lists “Marijuana (THC)” as the first category in its five-panel drug-testing regimen. “Safety sensitive” employees, including CDL drivers, are not permitted to have marijuana in their systems at any time. Federal authorities, including FMCSA officials, are actively enforcing prohibitions against marijuana use in the state and local jurisdictions where it is legalized. It does not matter if a driver has a medical card legally prescribed by a doctor under state law; medical marijuana is prohibited under federal law. Nor does it matter whether the CDL driver operates in intrastate or interstate commerce. All CDL drivers are prohibited from using marijuana under federal law.
CDL drivers using marijuana for medical or recreational purposes are still required to take DOT-mandated drug tests. A positive marijuana test result, regardless of whether the driver has permission from the state to use medical marijuana, is a violation of DOT drug testing requirements, for which the driver will be held accountable. Even if a driver is not under the influence of marijuana at the time of a federally mandated drug test, THC from the drug may be detectable in urine for up to 30 days after use and result in a positive test. Drivers testing positive for marijuana must be immediately removed from commercial motor vehicle operation and prevented from conducting safety sensitive functions, including any work involving the shipment of hazardous materials. Drivers testing positive must also go under the care of a substance abuse professional for the prescribed period of time and follow all return-to-duty requirements under federal drug testing regulations.
DOT Rule 49 CFR Part 40 Section 40.151 clarifies that Medical Review Officers “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,” and points specifically to the example of “a state law that purports to authorize such recommendations, such as the ‘medical marijuana’ laws that some states have adopted.”
The Opioid Epidemic
According to the Centers for Disease Control and Prevention (CDC), opioids, including both prescription drugs and illicit substances, are the main cause of drug overdose deaths. “Opioids were involved in 42,249 deaths in 2016, and opioid overdose deaths were five times higher in 2016 than 1999.” Of the 10 states with highest drug overdose death rates, three — New Hampshire, Maine, and Rhode Island — are in New England.
In response to growing concerns about widespread prescription painkiller abuse, FMCSA has adopted new CDL drug-testing requirements that include synthetic opioids and benzodiazepines, two very addictive medications used to treat pain and anxiety. This is important to NEFI members, not only because the national opioid epidemic has affected communities across New England, but also because the new rules could increase the number of CDL drivers who fail FMCSA-required drug tests. The new drugs added to the FMCSA test panel include four synthetic opioids: hydrocodone, hydromorphone, oxycodone and oxymorphone. In addition, FMCSA will add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine (MDEA) as a confirmatory test analyte.
The new guideline was approved by the FMCSA’s Medical Review Board after the U.S. Food and Drug Administration issued a warning last year that the combined use of opioid pain medications and a variety of common benzodiazepines prescribed for anxiety, insomnia, and seizures can induce “extreme sleepiness, slow or difficult breathing, coma or death.” Although it is not uncommon for doctors to prescribe the two drug types, the combination of certain medications can dangerously depress the central nervous system. Hydrocodone, hydromorphone, oxycodone and oxymorphone are Schedule II controlled substances. Brand names for these drugs include OxyContin®, Percoset®, Vicodin® and others. The four new synthetic opioids have been added to the FMCSA “opioids” testing category, which was previously referred to as “opiates” and will continue to include heroin, morphine and codeine.
The new drug testing requirements took effect January 1, 2018.
According to FMCSA: “A driver cannot take a controlled substance or prescription medication without a prescription from a licensed practitioner. If a driver uses a drug identified in 21 CFR 1308.11 (391.42(b)(12)) or any other substance such as amphetamine, a narcotic, or any other habit forming drug, the driver is medically unqualified.”
There is, however, one noteworthy exception.
The doctor who prescribed the drug can write a letter to the Medical Examiner stating that the driver is safe to fulfill the duties of a commercial driver while taking the medication. “In this case, the Medical Examiner may, but does not have to certify the driver,” writes FMCSA.
The Medical Examiner can determine if a driver’s medication use will jeopardize safe operation of a CMV by individually reviewing each medication — including all prescription and non-prescription drugs, as well as any supplements — or by requesting a letter from the prescribing doctor.