Arkansas Cannabis Laws and Employment Issues

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Arkansas Environmental Energy and

Water Log Blog

http://www.mitchellwilliamslaw.com/blog

Three combined posts every business day addressing

federal/Arkansas legislation, regulation,

administrative/judicial decisions and personnel transitions

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:



What does the Arkansas Medical Marijuana Amendment

provide?



How are the cultivation and processing facilities

regulated from an environmental and safety standoint?



What are the rules applicable to medical marijuana

waste?

-

Marijuana waste itself

-

Marijuana waste such as solvents, oils, etc.,

generated in processing activities.



The various employer/employee issues raised by a

workforce that can now legally ingest marijuana if they

meet certain criteria (and how to address these issues)

4

Therefore, we will discuss key employment issues. We

also will focus on issues associated with marijuana

waste disposal such as:

•

Waste generated (variety of wastes may be

generated)

•

Disposal/treatment activities

•

Potentially applicable federal and state

environmental legal requirements

•

Contract Issues/Allocation of liability associated

with disposal

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

Decriminalizes (from a state [Arkansas] standpoint)

certain use of marijuana



Establishment of regulation of cultivators and

dispensaries



Does not require “Employer to accommodate the

ingestion of marijuana in a workplace or an employee

working under the influence of marijuana.”



Outlines process pursuant to which an individual can

become a “Qualifying Patient” who can use medical

marijuana



Doctor certifies he/she has a “Qualifying Medical

Condition”

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

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•

DEA Schedule I controlled substance

•

Substances in this schedule have 

no currently

accepted medical use

 in the United States, a lack of

accepted safety for use under medical supervision,

and a high potential for abuse



Obama Administration Attorney General relaxed federal

enforcement



Trump Administration sending mixed messages



What will Biden Administration do?

7



Arkansas passage of the Arkansas Medical Marijuana

Amendment (“AMMA”) of 2016 set in motion fast-paced

efforts to put in place rules that will allow the cultivation,

processing, dispensing, and purchase of marijuana for

medicinal-related consumption.



Cultivation and dispensaries operating across the State

of Arkansas



Thousands of registry cards issued by Arkansas

Department of Health



The legalization of certain uses/cultivation of marijuana

in Arkansas is generating a host of legal issues including

healthcare, insurance, banking, OSHA, etc.

8



This is arguably particularly difficult for many employers

in the solid and hazardous waste and recycling

industries because of serious safety and environmental

issues:

•

Exposure to heavy machinery and dangerous

processes

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May be long commutes to some facilities in a rural

state such as Arkansas

•

Presence of hazardous materials requires vigilance

•

More difficult to find young employees because of

strict drug policies

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

Other laws create further confusion

•

Federal American Disabilities Act

•

Federal Drug Free Workplace Act of 1988

•

State Workers’ Compensation laws

•

Federal Department of Transportation Regulations

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

Presentation will identify issues that employers might

consider in view of potential employee use of medicinal

marijuana.



They may include any number of issues involving both

job applicants or current employees.



Suggestions for addressing issues arising out of

medicinal use of marijuana in the employment context

are provided.



First, we will discuss the environmental and other

regulatory issues associated with these facilities



Including impacts from an energy and water standpoint

11

Arkansas Agencies that Oversee

Medical Marijuana

•

Arkansas Medical Marijuana Commission (authorizes

cultivators, processors, and dispensers)

•

Alcohol Beverage Control (“ABC”)

•

Arkansas Department of Health

ABC administers regulations addressing facility security,

packaging, qualify control, structure design, etc. 

and

disposal of medical marijuana wastes

DOH addresses doctor certifications, qualifying patients, etc.

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State Regulation

Non-Hazardous (RCRA) Marijuana Plants waste (including

stalks, roots/soil) and unusable marijuana

Examples:

- Trim (leaves and other materials removed during a

   harvest

-  Shake (leaves fall off naturally)

Grow Medium

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.

a.

All medical marijuana waste shall be stored in a secure,

limited access area on the premises of the cultivation

facility or dispensary.

b.

All medical marijuana shall be rendered unusable

pursuant to the methods set forth in this rule prior to

disposal.

c.

All steps taken to render the marijuana unusable shall be

conducted under video surveillance by the licensed

facility’s video surveillance system

d.

All medical marijuana waste set for disposal shall be

properly weighed and recorded in the Inventory Tracking

System.

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e.

A cultivation facility or dispensary shall notify the

Division at least three (3) business days prior to

rendering the medical marijuana waste unusable

and 

disposing of it.  The notification shall include the

weight of the marijuana to be rendered unusable

f.

Medical

 marijuana shall be rendered unusable by

grinding and incorporating the cannabis plant waste

with other ground materials so the resulting mix is at

least 50% non-cannabis waste by volume.

“Division” is  a reference to ABC

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g.

Medical Marijuana waste rendered unusable by the

methods described in section (2), may be delivered

to a permitted solid waste facility for final

disposition.  Permitted solid waste facilities may

include:

•

Compostable Mixed Waste: Compost, anaerobic

digester, or other facility approved by the

Division

•

Noncompostable Mixed Waste: Landfill,

incinerator

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The following acceptable materials may be combined with

cannabis plant waste:

i.

Compostable Mixed Waste:  Cannabis waste to be

disposed of as compost, feedstock, or in another

organic waste method may be mixed with the

following types of waste materials:

1.

Food waste;

2.

Yard waste;

3.

Vegetable based grease oils;

4.

Agricultural

 Materials

5.

Biodegradable

 products and paper;

6.

Clean

 wood;

7.

Fruits

 and vegetables; or

8.

Plant

 matter.

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ii.

Noncompostable Mixed Waste:  Cannabis waste to

be disposed of in a landfill or another disposal

method, such as incineration, may be mixed with

the following types of waste materials.

1.  Paper waste;

2.  Cardboard waste;

3.  Plastic waste;

4.  Soil;

5.  Nonrecyclable plastic; or

6.  Broken glass.

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Medical Marijuana Wastes?

Examples from these categories



Trim and solid plant material used to create an

extract



Waste solvent (example – Butane making

concentrates via hydrocarbon extraction)



Laboratory waste



Extract that fails to meet quality testing



Used reactants



Residual solvents include butane, hexane,

alcohol, and ethanol which are byproducts of

extraction

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Medical Marijuana Wastes?

Examples (cont.) from these categories



Alcohols



Residual pesticides/fertilizers



CO

2

 cartridges



Cleaning solution



Lighting ballasts



Hydroponic waste

-

Nutrients (significant phosphorous,

nitrogen, calcium and zinc)

-

Wastewater



Light bulbs ([mercury] grow lights) 

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Energy Issues



A significant topic in states already allowing cultivation is the energy

impact of cultivation.



2000-3000 Kilowatt hours of energy per pound of product.  (NPCC)



The publication 

Utility Dive

 quotes Mr. Pete Rumsey, Executive Vice

President of Business Development at Lighting Science, who states:

Cannabis is one of the most energy-intensive industries

in the world.  Statistics show that one percent of all

electricity used in the United States today is used by

indoor marijuana growers, to the tune of almost $6 billion

annually.



The same publication notes that growing four mature marijuana

plants consume about as much power as running 29 refrigerators

around the clock.

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Energy Issues



Why are cultivation facilities motivated regarding energy

conservation?



Highly competitive industry



Margins decreasing



Energy is one of the largest cost components for

cultivation/infusion facilities

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Energy Issues (cont.)



Energy is consumed by cultivation activities and

processes such as:



Intense lighting (10,000 watt grow lights)



High pressure sodium



Ceramic metal halide



Light emitting of diode



Continuous air conditions (climate control)



Intricate

 ventilation systems



Water pumps and purifiers



Heaters for drying and curing marijuana



Extraction equipment filters



State of the art security measures



CO2 injection



High powered compressors (extraction)

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Water Use



Cultivating and processing marijuana is water

intensive.



A facility tapping into a public utility or municipal

water line if among a concentration of such facilities

could be a material issue in terms of quantity used.

For purposes of producing high marijuana yields

influent water may be scrutinized for:

•

Total soluble salt

•

Proportion of sodium cations

•

Excessive concentrations of elements that curves

toxicity on ionic imbalance in plants

•

Bicarbonate anion concentration as related to

calcium plus magnesium cations

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Wastewater

Wastewater utilities  will need to evaluate

cultivating/infusion facilities’ wastewater streams.



Scrutinize pollutant concentration



Nutrient issues (Phosphates and Nitrates)



Biocides interfere with treatment



Facility practices to address potential wastewater

issues



Available agronomy practices to reduce pollution



Minimize/use best practices for reducing solvent

usage for processing plant material



Recirculating hydroponic system



Address/sewer entry points in cultivation rooms

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Wastewater (cont.)

Infusion/Extraction/Production



Relevant pollutants?



Prevent gaseous solvents like carbon dioxide,

propane or butane discharging into sewer system

wastewater



Solvents such as hexane, etc., maybe flammable



Fats, oils, and grease from edible production



High concentration or improper use of cleaning

agents

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Air



Odors (release of VOCs) from cultivation/processing

(odor control plans are required such as carbon filtration,

etc.)



Emission of volatile organic compounds associated with

extractions and infusions



Fermentation to produce C02 to accelerate plant growth

(creating CO, nitrogenoxides, PM, S02 and VOCs)



Natural Gas Fired Boilers/Emergency generators

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Service/Disposal Agreements

•

Potential liability for improper disposal of medical

marijuana wastes

•

Allocate liability in service agreements

•

Generator warrant/certification waste meets

definition of 

unusable

•

Use of waste profile

•

Provisions for indemnity, rejection, expense for

sending back, etc.

Note:  Landfills operating procedures may consider

need for immediate burial, etc., to prevent scavenging.

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1.

Pesticides/Fungicides/Insecticides/Herbicides Restrictions

a.  Utilized in various stages of cultivation and processing

b.

Labeling/use restrictions/requirements

i.  Federal Insecticide Fungicide Rodenticide Act 

(“FIFRA”)

ii.

States Implementing/Enforcing FIFRA regulations

2.

State Air Requirements

a.

Permitting

i.  Potential Emission Sources

A.  Boilers/Generators/Heating Units

B.

Processing/Use of Solvents for Extraction 

(volatile organic compounds)

b.

Odor Issues

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3.

Solid Waste Management Requirements

a.

Restrictions on availability of composting for

marijuana-related solid waste such as

vegetative material and used plant growth soil

b.

Restrictions on availability of landfills, transfer

facilities, or transport for marijuana-related

waste

4.

Hazardous Waste Management Requirements

a.

Marijuana processing and cultivation activities

can generate hazardous wastes (discarded

solvents, chemicals, etc.) triggering Resource

Conservation and Recovery Act (“RCRA”)

Subtitle C (or state equivalent) requirements

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5.

State Wastewater Requirements

a.

Clean Water Act/National Pollution Discharge Elimination

System permits for direct discharges from

cultivation/processing structures into waterbodies

b.

Clean Water Act/Pretreatment Requirements imposed on

cultivation/processing structures discharging into municipal

wastewater treatment plants

6.

Fire Codes

a.

National Fire Protection Association

i.

National Fire Protection Association (“NFPA”) task

group developing specific Chapter for

cultivation/processing facilities

ii.

NFPA draft report issued in Fall 2016 titled “Marijuana,

Growing, Processing and Extraction Facilities”

iii.

NFPA 58 (Liquefied petroleum gas)

b.   Local/State Fire Codes

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Key Issues Affecting Employers

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•

Cancer

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Glaucoma

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HIV/AIDS

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Hepatitis C

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ALS

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Severe Arthritis

•

Crohn’s Disease

•

Ulcerative Colitis

•

PTSD

•

Tourette’s Syndrome

•

Fibromyalgia

•

Alzheimer’s Disease

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Also includes chronic or debilitating diseases

with enumerated severe symptoms including:



Intractable Pain



Severe Nausea



Severe Muscle Spasms



Seizures

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

If a physician provides a written certification of a

qualifying condition, the qualifying patient can use the

certification to obtain a registry identification card from

the Arkansas Department of Health



Once the Qualifying Patient Obtains a Registry

Identification Card, he/she can purchase and possess

up to 2.5 ounces of marijuana without threat of criminal

prosecution or adverse state actions

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Some job applicants and employees may produce a

medical marijuana registry ID card approved by the

Arkansas Department of Health in response to a failed drug

test.

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

Non-compliance with the Arkansas Medical Marijuana

Amendment of 2016 (AMMA) can pose significant risks

for an employer.  It includes a non-discrimination

provision directed at employers.  The provision provides

that:

o

“An employer shall not discriminate against an

applicant or employee in hiring, termination, or any

term or condition of employment, or otherwise

penalize an applicant or employee, based upon the

applicant’s or employee’s past or present status as

a qualifying patient or designated caregiver.”

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•

Damages under the AMMA for an employment

discrimination claim based on an applicant’s or

employee’s past or present status as a qualifying patient

or designated caregiver is capped in accordance with

the statutory caps in the Arkansas Civil Rights Act.

•

Liability for back pay is limited to no more than two

years prior to the filing of an action and the period within

in which an applicant or employee can bring such an

action is one year from when the alleged discrimination

occurred.

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What if your employee has a registry card?



Two straightforward conclusions:

o

There is no protected right either from the state or

federal government to be under the influence in the

workplace.

o

Off-duty consumption of marijuana without a

registration card still illegal

o

Reasonable suspicion testing

The rest of the questions are more difficult.

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Systemic Marijuana Side Effects

(THC)

•

Short-term memory

problems

•

Impaired thinking and ability

to perform tasks requiring

mental alertness

•

Loss of balance and motor

function (e.g., coordination)

•

Decreased ability to

concentrate

•

Changes in sensory

perception

•

Decreased reaction time

•

Increased heart rate

•

Increased blood pressure

•

Dry mouth

•

Increased appetite, thirst

•

Drowsiness

•

Anxiety, insomnia, panic

attacks

•

Hallucinations

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

Carry-over impairment effect



Slow rate of metabolization



Remains in system for extended period



Easily accessible



Pervasive unlawful use



High rates of chronic and habitual use

41

General Concerns



What do we mean by “medical marijuana”?  What would

be permissible? Oil? Edibles? Smoked?



Could impact workplace policies on:

◦

Smoking

◦

Possession at work

◦

Whether it can be consumed during work time

42

Safety Still Important



Costs of ensuring safe workplaces continue to

escalate, including due to risks such as distracted

driving, increased driving time, faster production

demands, etc.



Industrial, manufacturing and 

energy

 facilities have

particularly complex operations including those relating

to protection of environment, health and safety.



More injuries means increased workers’ compensation,

unemployment, and litigation costs

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Employer Issues



Costs of drug-testing applicants, employees



Increased management training costs



Increased need for supervision, oversight

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Key Questions Faced by

Arkansas Employers



Do employers continue to enforce their traditional

substance-abuse policies, or adopt a new approach for

dealing with employees who test positive for marijuana

in the workplace?



Does the Americans with Disabilities Act (ADA) protect

employees who claim discrimination based upon their

use of marijuana for a disabling medical condition?

      (Yes)

45

Key Questions Faced by

Arkansas Employers (Cont.)



Do employers violate the Occupational Safety and

Health Administration’s (OSHA’s) General Duty Clause

by allowing employees who use marijuana to perform

safety-sensitive jobs, and thereby create a workplace

hazard that OSHA standards seek to eliminate?

(irrelevant fun fact – note use of drones by OSHA and

LA DEQ



Do the Department of Transportation’s (DOT’s)

substance-abuse regulations trump state marijuana

laws? (Yes)

46

Key Questions Faced by

Arkansas Employers (Cont.)



Heightened level of concern when claimant returns to a

safety-sensitive occupation, such as driving or

construction, while subject to potential adverse cognitive

and psychological effects of marijuana?



Quantification of the amount of marijuana consumed by

claimant is not available through urine medication

testing, thereby limiting ability to determine if he or she

has consumed prescribed dose, or is in fact acutely

intoxicated

47

Key Questions Faced by

Arkansas Employers (Cont.)



Can an employer ban the use of marijuana by an

employee if it is permitted by state law - and if the

employee has a prescription?



Does an employer have the right to terminate an

employee who tests positive for marijuana, even if the

employee shows no signs of impairment on the job?

48

Conclusions



Employees shown to be “impaired” on the job may be

disciplined and discharged by an employer.



As we will discuss, Federal government

contractors/grantees subject to the Drug Free

Workplace Act of 1988 should continue to follow all of

the requirements of the Act, even in states permitting

marijuana use by employees



Employers subject to Department of Transportation

HAZMAT rules must recognize the continued ban of

marijuana use.

49

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s

D

o

?

•

Establish a Drug Free Workplace

o

Note: qualified medical marijuana users can still be

employed

•

Make jobs with specific safety sensitive tasks or related

to public health

•

Have a way of tracking job performance

•

Have an action plan for how you will respond to an

employee who is a medical marijuana user

50

The Arkansas Amendment

Employer Issues/Suggestions

Create Written Job Descriptions which Designate Safety

Sensitive Positions within your Organization?

The AMMA permits employers to “exclude a qualifying

patient from being employed in or performing a safety

sensitive position based on the employer’s good faith belief

that the qualifying patient was engaged in the current use

of marijuana.”

Safety sensitive position is defined as “any position

designated in writing by the employer 

as a safety sensitive

position in which a person performing the position while

under the influence of marijuana may constitute a threat to

health or safety.

51

The Arkansas Amendment

Employer Issues/Suggestions

Creating written job descriptions which designate certain

jobs as “safety sensitive positions” permits employers to

exclude job applicants and employees with medical

marijuana registry ID cards from those positions.

What are safety sensitive positions in the oil and gas

industry?

This will be particularly important for many positions/tasks

in the oil and gas industry.

Shape your policies around specific job tasks that would

not be allowed to perform.

52

The Arkansas Amendment

Employer Issues/Suggestions (cont.)

Review and Update Your Employee Handbooks, and Drug

Testing Policies and Practices?

Some employers use employee handbooks to provide

definitive guidance on workplace policies or rules.

Revise your employee handbook to address the use of

marijuana in the workplace.

Employee handbooks should make clear that employees

are not permitted to possess, smoke, ingest, or engage in

the use of marijuana while on the employer’s premises

during the hours of employment.

53

The Arkansas Amendment

Employer Issues/Suggestions (cont.)



Employees should not be permitted to be under the

influence of marijuana while on an employer’s

premises or during the hours of employment.



Modify definition of “under the influence” to comply with

Amendment

54

Laws and Regulations



The Drug-Free Workplace Act of 1988

o

Prohibits the possession and use of marijuana (and

other drugs) in the workplace if the employer has a

federal contract of over $100,000 or is a federal

grantee of any kind

o

Applicable to certain federal contractors and

grantees

o

Penalties include cessation of payment, termination

of contract/grant, suspension/loss of federal

contractor or grantee status

55

Laws and Regulations (cont.)

Drug Free Workplace Act of 1988 (cont.)

Six requirements

•

Publish a policy statement informing employees that it is unlawful to

have or use drugs in the workplace and the penalties imposed if they

do

•

Create a drug free awareness program to educate employee

•

Notify employees that employment on a federal contract requires the

employee to abide by the drug free workplace policy

•

Notify the contracting federal agency within 10 days of receiving

notice that any employee has been convicted of a criminal drug

violation in the workplace

•

Impose a penalty on employees convicted of drug violations or

require participation in a drug rehabilitation program

•

Make an ongoing good faith effort to maintain a drug free workspace

It does not mandate testing

56

Possible Employer Drug Policies



Drug “use” vs. “impairment”

o

THC levels in medical marijuana user vs. casual

user



Policy should address prescription medication that may

affect employee’s ability to work safely and

competently



Consequences for refusal to submit to test?

57

The Arkansas Amendment

Employer Issues/Suggestions

Review drug testing policies and procedures.



Under the AMMA employers may continue to establish

and implement a substance abuse and drug-free

workplace policy that includes a drug testing program

that complies with state or federal law and may take

action with respect to an applicant or employee under

such a policy



Such policies and procedures reinforces the employer’s

prohibition on the use of marijuana in the workplace and

communicates the consequences of either a positive

test for marijuana or an applicant or employee’s refusal

to be tested.

58

The Arkansas Amendment

Employer Issues/Suggestions (cont.)

Train Managers and Supervisors to Identify Employees

Under the Influence with a Good Faith Belief Sufficient to

Support the Administration of a Drug Test

Employers may only act against an employee so long as

they have a good faith belief that the employee possessed,

smoked, ingested, or otherwise used marijuana, or was

under the influence of marijuana, while on the premises of

the employer or during the hours of employment.

59

The Arkansas Amendment Employer

Issues/Suggestions (cont.)



Employers must demonstrate they have the necessary

“good faith belief” to warrant the administration of a drug

test before taking action against the employee.



Managers and supervisors should not rely on a good

faith belief alone to support taking action against an

employee.



The observations of the manager or supervisor should

be used to support the administration of a subsequent

drug test.

60

The Arkansas Amendment Employer

Issues/Suggestions (cont.)



“Good faith belief” means a reasonable reliance on fact

and can be based on observed conduct, behavior or

appearance, information reported by a person believed

to be reliable, or written, electronic or verbal statements

from the employee or other persons.



A manager or supervisor deciding whether to administer

a drug test to an employee must be able to identify not

only the source of the information on which he or she is

acting, but also why their reliance on the information is

reasonable.

61

Drug Testing Recommendations



Institute policy that requires employees to disclose use

of medications that may impair their ability to work if

this request is job-related and consistent with business

necessity



If an employee tests positive for marijuana, confirm that

employee is prescribed marijuana

62

The Arkansas Amendment

Employer Issues/Suggestions (cont.)



Businesses should also train their frontline supervisors

and managers to identify when an employee may be

under the influence of marijuana during their hours of

employment.



The observation of these physical symptoms supports

the administration of a drug test, which if positive

supports the employer taking action against the

employee assuming the proper policies are included in

the employer’s handbook.

63

Employer Issues/Suggestions

The Americans with Disabilities Act



Employers may prohibit current illegal use of drugs and

alcohol in the workplace and require that employees

report for duty without engaging in the unlawful use of

drugs



A positive test result establishes “current” use



Under federal law, medical marijuana use is considered

illegal drug use

64

Laws and Regulations



Americans with Disabilities Act (cont.)

o

Contains an illegal drug provision (exception for use of

Schedule I drug taken under supervision by a licensed

health care professional)

o

Employees are seeking accommodation for the

underlying disability that necessitates the use of medical

marijuana

o

Does the accommodation impose an “undue hardship”?



Nature and cost of the accommodation



Financial resources of the employer



Type of operation of the employer



Impact of the accommodation



Is there a connection between the medical screening and the

work performed?

o

Examples – airline pilots, school bus drivers

65

Employer Issues/Suggestions (cont.)

Health Coverage Issues?



Some states with medical marijuana laws expressly do

not require health insurance providers to reimburse for

medical marijuana



Arkansas Amendment does not require a governmental

medical assistance program or private health insurer to

cover medical marijuana unless federal law requires it.

66

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Federal grant recipients and contractors must adopt a

zero tolerance policy for drug use and certify that he

workplace is drug free.



Publish a written policy and require employee consent;



Initiate awareness programs about dangers of drug

abuse and available counseling/rehabilitation;



Requires employees to notify employers of any drug-

related conviction; and



Make an ongoing good faith effort to maintain a drug-

free workplace.



*The Act does 

not

 require (or prohibit) drug testing.

67

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68

Laws and Regulations (cont.)



Occupational Safety and Health Administration (OSHA)

General Duty Clause

o

Maintain workplaces that are free from hazards

likely to cause death or serious physical harm to

employees

o

Impairment caused by marijuana could be

considered a hazard and a possible violation of

OSHA

o

Does legalization have the potential to increase

injury and citation risks?

69

Laws and Regulations (cont.)



OSHA-Post-Accident Drug Testing

o

Employers may conduct post-incident drug testing if there

is a reasonable possibility that employee drug use could

have contributed to the reported injury or illness.

o

However, if employee drug use could not have

contributed to the injury or illness, post-incident drug

testing would likely only discourage reporting without

contributing to the employer’s understanding of why the

injury occurred.

o

Drug testing under these conditions could constitute

prohibited retaliation.

o

Testing consistently reduces chances of OSHA retaliation

claim

70

Laws and Regulations (cont.)



U.S. Department of Transportation

o

Omnibus Transportation Employee Testing Act of 1991



Requires drug and alcohol testing of drivers, pilots, and

other “safety-sensitive” jobs that are under the domain

of the Department of Transportation (DOT)



The DOT prohibits the use of medical marijuana by

transportation workers including pilots, school bus

drivers, truck drivers, subway operators, ship captains

and fire-armed transit security workers



DOT’s Drug Alcohol Testing Regulation – 49 CFR Part

40 – “does not authorize ‘medical marijuana’ under a

state law to be a valid medical explanation for a

transportation employee’s positive drug test result.”

71

Laws and Regulations (cont.)

Department of Transportation



Pilots, bus drivers, truck drivers, train engineers,

subway operators, aircraft maintenance personnel,

transit fire armed security personnel, ship captains and

pipeline emergency response personnel, among others



No driver may report for or remain on safety-sensitive

duty while using any controlled substance



No driver shall report for or remain on safety-sensitive

duty after testing positive for unlawful drugs

72

Laws and Regulations (cont.)

Department of Transportation (cont.)



On 10/22/09, DOT issued a statement asserting that its

regulated drug testing program will not change based upon

the DOJ’s 10/19 statement



DOT regs do not authorize ‘medical marijuana’ under state law

to be a valid medical explanation for a transportation

employee’s positive drug test result. (DOT takes priority)



“Therefore, 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 Dept. of Transportation’s

drug testing regulations to use marijuana.”

73

Laws and Regulations (cont.)



Employers subject to DOT regulations should continue

to follow the DOT substance-abuse regulations and

testing obligations per the DOT Medical Marijuana

Notice of February 22, 2013, and the Recreational

Marijuana Notice of May 27, 2014.

74



Use still prohibited by U.S. DOT for CDL drivers (DOT

last month

 issued second clarification because the

occurrence of positive drug test results for CDL drivers

using these products in increasing.) (Medical Review

Officer conducting driver tests will not issue a negative

test result simply because the THC detected in a urine

sample was from legal marijuana or CBD oil.)

75