The Department of Transportation's message is loud and clear. Despite reclassifying some medical marijuana as a lesser drug by the Justice Department, it’s still prohibited for those in safety-sensitive positions covered under 49 CFR Part 40, including commercial drivers.

An executive order in December, followed by an order from the Justice Department in April, brought about a change in classification for FDA-approved drug products derived from marijuana and marijuana products regulated by a state medical marijuana license. They were moved from Schedule I to Schedule III drugs under the Controlled Substances Act (CSA). This action doesn’t reclassify recreational marijuana.

The U.S. Department of Transportation’s (DOT) Office of Drug and Alcohol Policy & Compliance (ODAPC) realized activity surrounding the status of marijuana confused both employers and employees in many transportation sectors.

As a result, ODAPC offered guidance that clarifies there is no “legitimate medical explanation” (e.g., state medical marijuana) for a drug test that was reported to the medical review officer (MRO) as positive for marijuana.

Legitimate Medical Explanations Defined

To understand why an MRO can’t accept a state-licensed marijuana product as a reason to change a DOT test result, you need to look at what constitutes a legitimate medical explanation.

A legitimate medical explanation requires the use of a legally prescribed controlled substance within the scope of federal prescription laws. Even after rescheduling, state-dispensed marijuana is not a U. S. Food and Drug Administration (FDA)-approved drug. FDA approval is required for a substance to be legally prescribed.

The guidance reminds MROs, employers, and employees that state-issued medical marijuana cards, physician recommendations or certifications, or dispensary records or receipts don’t satisfy Part 40 requirements for a legitimate medical explanation. ODAPC also states, “In addition, marijuana use is not compatible with safety-sensitive functions.”

What’s Next for Marijuana and Fleets?

The Drug Enforcement Administration (DEA) is initiating an administrative hearing process to consider the broader rescheduling of marijuana from Schedule I to Schedule III.

More will be known about the impact after the hearings are completed and a final rule is issued. If DEA rulemaking reclassifies marijuana to Schedule III overall, a lot must happen before any changes impact the DOT drug testing regulations.

The DOT is required to follow U.S. Health and Human Services (HHS) guidelines for DOT drug testing, including the drug testing panel. Until the DEA acts on rescheduling marijuana, neither the HHS nor the DOT can move forward.

Changes to the DOT drug testing panel can’t occur unless:

• The HHS provides new guidelines, and
• 49 CFR Part 40 is revised through the rulemaking process.

At this time, it’s unknown whether any stipulations will be built into the rescheduling, allowing HHS and DOT to continue testing for marijuana.

DOT's Position Remains Clear

Motor carriers should communicate with CDL drivers and those involved in their testing program about the status of marijuana. Key points to share include:

• Marijuana remains prohibited for those in safety-sensitive positions.
• The DOT drug panel will continue to analyze specimens for marijuana.
• An MRO is unable to accept medical marijuana as an excuse to change a positive test result to negative.

It’s important to snuff out any speculation about marijuana use by commercial drivers.