On December 3, 2012, U.S. Department of Transportation (DOT) Director, Jim Swart, with the Office of Drug and Alcohol Policy and Compliance, issued a letter responding to inquires about the impact to DOT regulations after the states of Washington and Colorado recently legalized the recreational use of marijuana.
The letter stated:
We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.
Apparently, the agency had been receiving questions as to how it would treat drug tests for those employees in states that have legalized the recreational use of marijuana. The letter specifically stated, “Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used ‘recreational marijuana’ […].”
So while Washington and Colorado no longer treat the possession of certain amounts of marijuana and the use of marijuana as criminal activity, the DOT will continue to consider safety-sensitive transportation employees, such as pilots, school bus drivers, commercial motor vehicle drivers, and other such employees as failing a drug test when they test positive for marijuana, even in those states where recreational use is permissible.
Tressi L. Cordaro is an associate in the Washington, D.C. office of Ogletree Deakins.