DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE
The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.
We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.
It is important for all employers and safety-sensitive employees to know:
- The Department of Transportation requires testing for marijuana and not CBD.
- The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. **[i]
- The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.
It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This policy and compliance notice is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this policy and compliance notice is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations. Safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified at 49 CFR part 40.
February 18, 2020
In preparation for the upcoming FMCSA Drug & Alcohol Clearinghouse effective January 6, 2020, NTA offers:
- Updated FMCSA Substance Abuse Policies and Driver Educational Materials to add the new component of FMCSR Part 382.601 (#12). These updates are included in the Annual Management Fee for existing clients.
- Policies and Educational material can be purchased by non-clients for $50.00.
- Important: Owner-operators are required to designate a Third Party Administrator (TPA) to manage their clearinghouse processes. Nationwide Testing Association is your Third Party Administrator. If you need help registering and designating us as your TPA, please call our office.
- Managing the clearinghouse process for owner-operators will be included in your annual management fee.
Our clients may choose to add the following package of services to their program. This package may be billed as a monthly, quarterly, or yearly subscription.
- Full Queries run automatically after the completion of a pre-employment DOT drug test.
- Annual Limited Queries run automatically on all drivers, either based on a predetermined date or scheduled with your annual MVR with Nationwide Testing Association.
- Coordination, evaluation, and assistance with all required reporting.
- Assistance in understanding and interpreting clearinghouse data.
Contact us for a quote!
When a driver has a verified positive drug test or refuses to test, the driver must be removed from a safety-sensitive function immediately per 49 CFR 382.501. No employer shall permit any driver to perform safety-sensitive functions; including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by Subpart B of this part or any alcohol or controlled substance rule of another DOT agency. The employer must present the driver with a list of Substance Abuse Professionals (SAPs) per 40.287. The list must be provided to the driver (or driver applicant) whether or not the carrier retains the driver in their employment. Retention of the driver would be based on the company policy.
In order to resume a safety-sensitive function, the driver must complete the Return-to-Duty Process of Subpart O of Part 40. The driver cannot perform a safety-sensitive function again until all the necessary steps are completed:
- The driver must seek a face-to-face evaluation from a SAP. (Payment of the evaluation is based on management-labor agreements and healthcare benefits and is not required of the employer under the FMCSRs.)
- The SAP will refer the driver to an appropriate treatment and education program.
- The driver must complete the required treatment and education and return to the SAP for another face-to-face evaluation.
- If the SAP is satisfied that the driver is able to return to driving, he/she will issue a report on his/her findings to the Designated Employer Representative.
- This report will list any continuing treatment and education, if required, and the number of DOT follow-up drug and/or alcohol tests required in a given time frame. The driver will be required to have a minimum of six unannounced follow-up tests in the first 12 months following the employee’s return to a safety-sensitive function. The SAP may require follow-up testing for up to five years.
- The driver now can go, and not prior to this point, for a return-to-duty drug and/or alcohol test. The employer must wait for the go ahead from the SAP before sending the driver in for the return-to-duty test. A negative result must be received before the driver can return to a safety-sensitive function.
After the driver returns to a safety-sensitive function, the employer must send the driver for the required number of unannounced follow-up tests making sure that they do not have any discernible pattern.
All records relating to a DOT-drug and alcohol violation must be retained for five years per 382.401. If the driver leaves the motor carrier’s employment prior to the completion of the very last follow up test, this information must be supplied to the prospective employer per 40.25, and the next employer(s) must pick up where the process left off.
*Please note that follow up and return-to-duty tests are always directly observed.
If you have any questions about this process, please contact us!