Summer 2018

The Debate Over Drug Testing Commercial Truckers Using Hair Samples

After the 2016 elections, 28 states and the District of Columbia have legalized the medicinal use of marijuana.  At least seven states have legalized the recreational use of marijuana.  The national trend of legalizing marijuana use, at least for medicinal purposes, is raising a number of issues in the trucking industry, which explicitly bans the use of marijuana for commercial drivers, regardless of whether a physician has prescribed its use.

The Federal Motor Carrier Safety Regulations (FMCSR) mandate that “no driver shall be on duty and possess, be under the influence of, or use, any substance set forth in Schedule I of the regulations….”  Marijuana qualifies as a Schedule I drug under the Controlled Substances Act, 21 U.S.C. § 801.  In November 2015, the Department of Transportation reiterated its zero tolerance policy when it comes to marijuana by issuing a “Medical” Marijuana Notice in which the Department stated that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana.’ … It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

Commercial drivers are required to submit to drug and alcohol testing.  Currently, the Department of Transportation provides specific procedures for urine drug testing and breath alcohol testing.  Some large commercial carriers go above and beyond the minimal testing requirements set forth by the Department of Transportation and test prospective drivers using hair samples, which can detect the presence of marijuana up to 90 days after use.  The urine analysis presently approved by the Department of Transportation can detect marijuana approximately two to three weeks after use.  The Department of Health and Human Services has been studying hair testing since 2004 and has been tasked with adopting a hair-testing standard for federal employees, which many hope will lead to the Department of Transportation adopting a hair-testing requirement for commercial truckers.

Many people in the trucking industry are eager for the Department of Health and Human Services to pass a hair-testing standard that can be utilized for all commercial drivers because it would help to identify more marijuana users and ideally prevent accidents that can be linked to intoxication.  Critics of this method of drug testing argue that hair testing will not yield the type of results necessary in the transportation industry; that is, whether the driver was under the influence of marijuana while operating a vehicle.  Rather, the results show a broad picture revealing whether a driver was under the influence at any point in the three months preceding the test.  Hair testing also draws criticisms because results can come back positive even if the hair was simply environmentally exposed to marijuana, as opposed to the individual actually ingesting the drug.

Although it remains to be seen whether the Department of Transportation will adopt a hair-testing methodology for drug testing drivers, it seems likely that there could be a dwindling pool of eligible commercial drivers if tests get more stringent while states get more lenient regarding the use of marijuana.