DOT Issues Position on Medical Marijuana

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Medical marijuana

The US Department of Justice (DOJ) recently issued guidelines for Federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana.” The DOJ guidance would seem to, at least partially, counter Department of Transportation (DOT) rules concerning the use of marijuana. It is very important that DOT regulated employers understand the DOT’s position. Because the DOJ guidance is what may have caused the confusion, a summary of the DOJ’s position is outlined first, followed by the DOT position.

US Department of Justice Position on Medical Marijuana Implications
In a directive with far-reaching legal implications, the Obama administration has told federal authorities not to arrest or prosecute people who use marijuana for medical purposes and those who distribute it to them. Attorney General Eric Holder said the new guidelines were adopted, in part, because federal law enforcement agencies have limited resources and need them for more pressing priorities. One of those priorities is countering the spread of violent Mexican drug cartels, which use the vast profits from their marijuana sales in the United States to support other criminal activities, the guidelines say.

Fourteen states—Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington—have medical marijuana laws The guidelines essentially reversed the Bush administration’s federal stance on the controversial issue. The previous administration held that authorities should continue to enforce federal drug laws even in states with medical marijuana laws on the books.

The DOJ guidelines to state that federal agents will go after people whose marijuana distribution goes beyond what is permitted under state law and those who use medical marijuana as a cover for other crimes.

DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE (October 22, 2009)

From the notice signed by Jim L. Swart, Director, DOT Office of Drug and Alcohol Policy Compliance:
“We have had 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.

We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our 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:

Part 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.” Please note 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.

We want to assure the traveling public that our transportation system is the safest it can possibly be.”

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