SAN ANTONIO – Marijuana is a prohibited substance for safety-sensitive motorcoach employees holding a commercial driver’s license, even if they’re in one of the many states that have legalized medical or recreational use of the drug, according to speakers trying to bring some clarity to an evolving and complex issue.
“As operators, we have to make sure that our drivers and other safety-sensitive people are aware of that,” Glenn Every, president of Tonche Transit Inc. in Mount Tremper, N.Y., said of medical marijuana, which some drivers might assume they can use for arthritis or other conditions
“But if they test positive, they’ve got a problem,” said Every, who also is an attorney.
Every, along with Gladys Gillis, CEO of Starline Luxury Coaches and new chair of UMA, and Jennifer Lancaster, acting drug and alcohol program manager for the Federal Motor Carrier Safety Administration, comprised a panel addressing state and federal drug laws dealing with marijuana.
The discussion was designed to help operators navigate the dos and don’ts of the increasingly ubiquitous drug, now legal in 29 states and the District of Columbia in some form.
The federal government considers marijuana a schedule 1 drug, the most serious level.
“That criminalizes its possession, manufacture, distribution and sale,” Every said. “So you can see that legalization at the state level is now in direct conflict with the federal level.”
A doctor’s referral for medical marijuana doesn’t excuse a CDL holder testing positive for marijuana.
“An MRO (medical review officer) cannot downgrade that positive test to a negative test,” because marijuana is a schedule 1 drug, Lancaster said. “It’s pretty black and white with us, so it’s just a no go.”
Every noted that doctors can’t write prescriptions for medical marijuana, adding that doing so would violate federal law.
“They get around it by making a referral, a recommendation,” he said.
Every noted the confusion and challenges confronting operators in various states.
“This is an area that’s evolving so fast,” he said. “There are splits between the federal circuits, there are contrary opinions coming out of state courts versus federal courts, so it’s an area that has to be watched very, very closely.”
U.S. Attorney Jeff Sessions added more cloudiness just days before the UMA panel when he rescinded what had been a hands-off approach to state marijuana laws under the Obama administration.
“The move essentially shifts federal policy…to unleashing federal prosecutors across the country to decide individually how to prioritize resources to crack down on pot possession, distribution and cultivation of the drug in states where it is legal,” according to a CNN report.
FMCSA’s Lancaster recommended operators who haven’t already should subscribe to the Office of Drug and Alcohol Policy and Compliance list serve to get emails to help stay abreast of the issue.
Any changes with drug and alcohol policy, ODAPC will put out an email, “so it’s a very good resource,” she said.
Gillis said operators often find themselves in gray areas, which can be costly for them in cases that end up in lawsuits. She distributed a handout with topics she recommended operators consider to try to lessen their gray-area vulnerabilities.
“I’m not trying to make decisions for them (operators), but I’m just saying, ‘You need to be thinking about it,’” Gillis explained after the panel presentation. “They should be trying to work with their local police and trying to find a way out of the gray area because right now they’re sitting in a gray area and that’s a (check) waiting to be written.”
Regarding employees who are not in safety-sensitive positions, Gillis said she would not terminate them over marijuana because of the liberal attitudes toward the drug in Seattle, where her company is based. Recreational marijuana is legal in Washington, but that may not apply in other states, she said, urging operators to seek advice in their own states about the best policies.
“You’ve got to tune into your state’s chamber of commerce, your business associations, your legislators – you’ve got to understand the gray area and the risk and you’ve got to ask for help,” Gillis said. “You need your state to tell you one way or the other, where’s the line,” because operating in a gray area can end up in costly lawsuits.
In New York State, Every said, there is a very protective statute for medical marijuana users.
“You cannot discipline them or fire them, basically,” he said. “It’s difficult to say the least. If they’re a safety-sensitive person, obviously we’ve got Jennifer (at FMCSA) and her friends telling us, ‘No, no, no,’ but New York is saying, ‘Don’t do anything.’
“Now, that hasn’t been tested and my advice would be to follow the federal law,” he added, anticipating how such a ruling would come down. “But, again, it’s with your non-safety-sensitive people, that’s why you need a separate policy for them.”
Every asked FMCSA’s Lancaster if carriers should expect roadside motorcoach inspections to include searches and drug dogs.
It’s up to state and local police, she said, predicting dogs could become part of searches.
Every also asked if operators should talk to state and local police about under what circumstances they’ll pull a bus over or search with dogs or otherwise on a routine stop.
“Most definitely,” Lancaster said. “I would think for the carrier, the more knowledge that you guys all have, the better equipped you are.”
Every also cautioned operators to be aware of passengers who might be significantly impaired by cannabis when dropping them off at their vehicles. If they get in their car and harm someone, the operator could be held liable, he said, comparing it to alcohol.
“We have to very careful about how we handle people who are impaired,” he said.
For a driver suspected of being impaired and subject to a drug test, Lancaster also had a recommendation: Drive the driver to the testing facility. Do not ask a person suspected of being high to drive himself to testing, she said.
“Unfortunately, that is a common issue that happens,” she said.
Lancaster also reminded listeners that, effective Jan. 1, drug and alcohol policies must reflect testing for four semi-synthetic opioids. Those are hydrocodone, oxycodone, hydromorphone and oxymorphone. The opioids are schedule 2.
“That is why a driver may use that if they have a valid prescription rather than use marijuana,” she said.
