The transportation industry is advising Congress that, if marijuana is federally rescheduled, businesses want assurances that they won’t have to forgo zero-tolerance drug policies for drivers—while stressing that a key problem for the sector is a lack of technology to detect impaired driving.
At a hearing before the House Transportation & Infrastructure Subcommittee on Highways and Transit last week, representatives of the trucking and railway industries addressed the challenge of enforcing drug policies—particularly with respect to marijuana as more states enact legalization and standard testing methods are still unable to identify when a driver is actively impaired from THC.
Typical urine drug tests, which are administered to workers on a regular basis, can detect THC-metabolites up to a few weeks after cannabis has been consumed. Hair tests have an even wider window for detection. While blood tests may show recent drug usage, they are more expensive for companies that cannot prove impairment.
Rep. Rob Bresnahan (R-PA) asked Dennis Dellinger—CEO of Cargo Transporters, Inc. who testified on behalf of the American Trucking Associations (ATA)—whether there was “anything specifically that Congress can do, or advocate for, to detect that immediate level of impairment with the half-lives of marijuana remaining inside of systems.”
Dellinger responded that “there is a widespread misconception that marijuana and cannabis are legal. This leads people to believe that they can drive under the influence of drugs, which causes a serious problem.”
We do not yet have a drug test to determine if a person is under the influence of alcohol. Instead, we rely on urine tests or hair tests, which test back. [beyond active impairment]He said. “And, I suppose the battle we face in our industry is that until we come up with a solution to the problem of a reliable test for the determination of whether a person is under the influence or not at the given time we will continue using the current system.”
He said: “I believe, in my company, that if there was an accident of any kind, and a post-accident test showed a positive result, then we’d have stumbling blocks in defending the accident.” He said that the punishment we’d receive from the media and the public would be shocking. Our position, therefore, is to simply accept that the tests we are currently undergoing must be accepted.
Dellinger, in written testimony presented to the House Transportation Subcommittee on Railroads, Pipelines, and Hazardous Materials, said that more must be done for highway safety.
Today, “we are focused on the effects of marijuana legalization,” the adoption of safe technologies on the road, driver distractedness, and making sure that drivers are properly trained, he stated.
The Federal Motor Carrier Safety Administration Drug and Alcohol Clearinghouse, launched by the FMCSA in 2020 has recorded more than 250.000 positive drug test results among commercial vehicle drivers. These numbers show a disturbing trend of substance abuse that is threatening the safety of the nation’s highways. Of these, marijuana remains the leading drug violation among drivers, accounting for roughly 60 percent of positive tests annually—a troubling statistic that underscores its widespread impact on highway safety.”
He added that the Biden administration-initiated proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA) is “raising serious concerns for highway safety.”
Dellinger explained that “such a decision would undermine zero-tolerance policy, compromise the federal drug-testing program in place to protect safety-sensitive professionals, make enforcement more difficult, and possibly increase marijuana usage among drivers.” In the absence of an established standard to measure marijuana impairment, and given that marijuana is already the most common drug violation in the FMCSA Clearinghouse database, the rescheduling of marijuana will put millions of road users at risk.
He said: “This Subcommittee has to ensure that robust and effective drug-testing protocols are maintained, and transportation safety must be prioritized no matter what the status of cannabis is at federal level.”
Dellinger answered a question by Rep. Rick Crawford, (R-AR), on the effectiveness and logistical aspects of adding options for hair-based testing.
The witness said his company incorporated such testing in 2017, but he pointed out that each test is nearly twice as expensive as a standard urine test—and simply disclosing the policy allowing for hair testing may be turning off potential employees.
“The unfortunate thing is that that driver—all he has to do is leave us when he fails the hair test and go down the street, take a urine test [and he’s] “Is working for somebody else,” said he.
A piece of written testimony submitted for a separate hearing last week before the House Transportation & Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials by Iam Jefferies, CEO of the Association of American Railroads, also noted the push to federally reschedule cannabis.
“Congress must ensure employers, including railroads, whose employees perform safety-sensitive tasks every day can test for marijuana and that positive tests are treated as evidence of unacceptable employee behavior,” said he.
Last year, the National Transportation Safety Board (NTSB) warned that marijuana rescheduling could create a “blind spot” with respect to drug testing of federally regulated workers in safety-sensitive positions—despite assurances from then-U.S. Transportation Secretary Pete Buttigieg that the cannabis rescheduling proposal “would not alter” the federal drug testing requirements.
Buttigieg cited concerns expressed by the ATA in a letter sent to the Secretary of Transportation, “about the public health and safety implications” that reclassification would have on users and the National Highway System.
A federal report released last year revealed that as more states have legalized marijuana, the number of commercial drivers who tested positive for drugs has decreased from 2022, when 57,597 tests were performed, to only 54,464 the previous year. A federal report published last year showed that the number of positive drug tests among commercial drivers fell in 2023 compared to the previous year, dropping from 57,597 in 2022 to 54,464 the prior.
A second survey found that 65,4 percent of drivers believe that current marijuana tests should be replaced by methods which measure active impairment.
At the time, the report from the American Transportation Research Institute (ATRI) noted a 65,000-driver deficit in the country and said the fear of positives over marijuana metabolites—which can remain in a person’s blood far long after active impairment—may be keeping would-be drivers out of the industry.
Despite a national shortage of driving professionals, the record high number of refusals was attributed to drug testing policy that could flag drivers for being impaired even if they are not.
The federal law currently in place requires that all commercial drivers refrain from using cannabis. They are subjected to various drug testing methods, from random to pre-employment.
A survey conducted by ATRI in June 2022 of U.S. licensed truckers found that 72,4 percent were for “loosening up” the cannabis laws and policies. A further 66.5 per cent said marijuana should be legalized federally.
Cannabis reform advocates, meanwhile, have also called on federal officials to change what they call “discriminatory” drug testing practices around the trucking industry.
A top Wells Fargo analyst said in 2022 that there’s one main reason for rising costs and worker shortages in the transportation sector: federal marijuana criminalization and resulting drug testing mandates that persist even as more states enact legalization.
Then-Rep. Earl Blumenauer (D-OR) sent a letter to the head of DOT in 2022, emphasizing that the agency’s policies on drug testing truckers and other commercial drivers for marijuana are unnecessarily costing people their jobs and contributing to supply chain issues.
ATRI’s 2022 report stated that the current research on the effects of marijuana use and driving safety was mixed. This made it difficult to make rules about the subject. A separate 2019 report from the Congressional Research Service (CRS) similarly found that evidence about cannabis’s ability to impair driving is inconclusive.
In addition, DOT published a final rule in 2023 that permits saliva-based screening as an alternate option for urine testing. According to the agency, THC can be detected in saliva from 1 to 24 hours following use depending on how often it is used.
In 2022, meanwhile, DOT proposed guidance warning commercial drivers who use CBD products that they are doing so “at their own risk.”
A newsletter from DOT’s Federal Transit Administration (FTA) published that same year included two sections on cannabis issues: one that again reminded employees that they’re barred from using marijuana and another that similarly warned that CBD products remain unregulated and could contain THC levels that are detectable in a drug test.
Meanwhile the head of ATA told Congress in 2023 that the state–federal marijuana policy conflict is creating a “litigious environment” for the trucking industry, contributing to the challenge of the labor shortage.
To that point, last October the U.S. Supreme Court heard oral arguments in the case of a trucker who sued a cannabis company after he was fired over a positive THC test that he says was caused by consuming a hemp-derived CBD product.
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