At this point, mostly all Pennsylvanians are aware that the Commonwealth has legalized marijuana for medical use. Now, residents in the Commonwealth who have been diagnosed by a doctor participating in the program as having one of the 21 recognized serious medical conditions, can obtain a Medical Marijuana Card.  This card is issued by the Pennsylvania Department of Health.  The certified resident is then able to visit any dispensary in the Commonwealth to purchase a variety of items containing medical marijuana in order to treat their serious medical condition.   

While this significant development has literally given life back to some residents, it has presented great challenges for others. The majority of those residents who face these challenges are those who work in the transportation industry.  Despite Pennsylvania and other states legalizing the use of medical marijuana, Federal Law says otherwise.  Specifically, marijuana is still classified as a Schedule 1 controlled substance under federal law.  In simpler terms, federal law still equates medical marijuana with recreational marijuana – both are illegal and are prosecuted the same way. 

For those employed in the transportation industry, Pennsylvania’s legalization of medical marijuana might as well have never happened.  This is because federal law preempts Pennsylvania’s Medical Marijuana Act for those employers subject to federally mandated, drug-free workplace programs, including CDL drivers.  Because of the current status of federal law, these employers can and must prohibit marijuana use in the workplace. 

In light of some of the confusion surrounding numerous states legalizing medical marijuana, the Department of Transportation issued a “Medical Marijuana Notice.”1  In no uncertain terms, the Notice specifically maintains that Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.  The Notice further explains 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, including CDL drivers subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.  The Notice ends by stating that the Department of Transportation wants “to assure the traveling public that our transportation system is the safest it can possibly be.”  While this leaves those employed in safety-sensitive positions with limited options for treatment of their serious medical conditions, there is simply too much at stake.

Please note that employers must report employees who test positive for marijuana, even if the employee legitimately possesses a Medical Marijuana Card.  Beginning on January 6, 2020, the employer will also be required to submit the positive drug (or alcohol) results to the Federal Motor Carrier Administration (FMCSA) new Commercial Driver’s License (CDL) Drug and Alcohol Clearinghouse (Clearinghouse). This new database will contain information pertaining to violations of the U.S. Department of Transportation (DOT) controlled substances (drug) and alcohol testing program for holders of CDLs.

The Clearinghouse rule requires FMCSA-regulated employers, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs), consortia/third party administrators (C/TPAs), and other service agents to report to the Clearinghouse information related to violations of the drug and alcohol regulations in 49 Code of Federal Regulations, parts 40 and 382 by current and prospective employees. 

“The Clearinghouse will provide FMCSA and employers the necessary tools to identify drivers who are prohibited from operating a CMV based on DOT drug and alcohol program violations and ensure that such drivers receive the required evaluation and treatment before operating a CMV on public roads. Specifically, information maintained in the Clearinghouse will enable employers to identify drivers who commit a drug or alcohol program violation while working for one employer, but who fail to subsequently inform another employer (as required by current regulations). Records of drug and alcohol program violations will remain in the Clearinghouse for five (5) years, or until the driver has completed the return-to-duty process, whichever is later.”2 

Employers should proceed with caution when handling an employee with a Medical Marijuana Card who has failed a drug test.  While employers can feel confident about disciplining the employee as they normally would, however, termination should first be discussed with an attorney.  In this regard, there are specific laws in place to protect those residents who legitimately possess a valid Medical Marijuana Card. 

Please feel free to contact us should you need assistance with any questions or legal representation related to the topics covered in this article.