It is important for all employers and safety-sensitive employees to know:
With the legalization of marijuana, medical marijuana and/or CBD (Cannabidiol) in more than half of the states in the U.S., there’s been confusion among safety-sensitive employees like pilots, bus drivers, train engineers and truck drivers who are required to take the U.S. Department of Transportation’s (DOT) Drug and Alcohol Test on what substances will fail a drug test.
For more information on Texas’ legalization of medical marijuana and CBD click here.
Here’s the short answer: The U.S. DOT Drug and Alcohol Testing Regulation does not authorize the use of Schedule I drugs, including marijuana, for any reason. 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.
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.
FDA has expressly stated “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” In addition, under USDOT drug testing regulations, no use of marijuana is authorized. Therefore, if a drug test confirms the presence of marijuana at the appropriate cut-off level, a claim that only CBD was used, that it was legally obtained and was needed for medical reasons will not stand.
The U.S. Department of Transportation (USDOT) Office of Drug and Alcohol Policy and Compliance has strongly cautioned truck drivers and other safety-sensitive employees subject to federal drug testing under 49 CFR (Code of Federal Regulations) part 40 about the use of CBD oil and other “cannabidiol” products.
Now may be a good time to refresh your memory about drug testing. PrePass has written extensively on the issue. The Federal Motor Carrier Safety Administration (FMCSA) has just increased the random drug test rate, in part because of the spreading legalization of medical and recreational marijuana. So by random test rate, it is more likely a truck driver will be tested. The drug test procedures themselves may be expanded in the near future and as of January 6, 2020, all drug test results are reported to the FMCSA Drug and Alcohol Clearinghouse, where avoiding scrutiny becomes more difficult.
By the new law’s definition, hemp-derived products, such as CBD oil and associated products can legally contain a concentration of up to 0.3% tetrahydrocannabinol (THC), the primary psychoactive component of marijuana. The problem? The Food and Drug Administration (FDA) does not currently certify the levels of THC in those products, despite what the product labels may claim. So, it is buyer beware! Above the 0.3% THC concentration, the product is legally marijuana, a Schedule I drug.
Even though a recently enacted law removed hemp from the definition of marijuana under the Controlled Substances Act, marijuana itself remains a Schedule 1 drug and its use can trigger a positive drug test result, with disqualifying penalties to the user.