Draft rules were published on the Federal Register on Aug. 15, which guides medical examiners (MEs) who conduct physical examinations for commercial drivers, and are responsible for certifying drivers for the U.S. Department of Transportation (DOT).
Called the “Qualifications of Drivers: Medical Examiner’s Handbook and Medical Advisory Criteria Proposed Regulatory Guidance,” these draft rules warn MEs of CBD consumption in their patients, and explain that it could still cause some drivers to fail their exams. The Federal Motor Carrier Safety Administration (FMCSA) handbook specifies that drivers may use CBD, because it is federally legal.
The DOT certification lasts for two years, but if drivers use cannabis, they still cannot be qualified, according to the draft’s section called “Use of Scheduled Drugs or Substances.” “A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational, medicinal, or religious use,” the rules state.
In its current form, the draft rules caution MEs that although CBD is legal across the country, the Food and Drug Administration (FDA) doesn’t regulate all of the products, and it can’t be guaranteed that a product’s labels do not incorrectly list the amount of CBD, or the accuracy of THC. “The United States Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain cannabidiol (CBD), so there is no Federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% by dry weight of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.”
More directly, the rules guide MEs on how to conduct the examination with CBD in mind. “The Agency encourages MEs to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. MEs may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process.”
The FMCSA also issued draft rules in 2021 as well, which only briefly mentioned CBD. “The Food and Drug Administration does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. Therefore, drivers that use these products are doing so at their own risk.” There was no mention of CBD in the 2020 draft rules, but it did state that cannabis was not allowed.
In July, DOT sent out a newsletter reminding drivers that cannabis use is prohibited, and the current state of unregulated CBD products that could contain more than the legal limit of THC. “Recently, some states and local governments have passed legislation prohibiting employers from testing for marijuana,” the newsletter states. “[Federal Transit Administration] employers are reminded that state and local legislative initiatives have no bearing on DOT regulated testing programs. Marijuana is still a drug listed in Schedule I of the Controlled Substances Act.”
The newsletter also includes a chart that describes the number of return-to-duty (RTD) drug tests, as well the number of FTA covered employers that are conducting RTD drug tests. One of the potentially telling statistics is the increase in both the number of Return-to-Duty tests conducted and the number of FTA-covered employers performing this type of test,” the newsletter states. “This data indicates a trend toward a ‘second-chance’ policy versus a ‘zero tolerance’/termination policy following a DOT drug violation.” In 2021, there were 892 RTD drug tests, with 236 drug tests by employers who are FTA covered.
In May, Rep. Earl Blumenauer sent a letter to Transportation Secretary Pete Buttigieg, expressing how DOT cannabis restrictions are leading to lost jobs. “The federal government should be making it easier for already-qualified drivers to stay in the profession, not forcing them away. Outmoded and unfair federal drug policies are out of step with reality and directly contribute to the trucking shortage crisis,” Blumenauer wrote. “Too many of the 2.8 million Americans who hold commercial driver licenses are not working because of past cannabis tests and the difficulty they face re-qualifying for duty. Getting these trained, qualified, and capable drivers back on the road will unsnarl supply chains faster and more efficiently. I am very interested in the steps your department is taking to ensure these qualified drivers have opportunities to return to work, regardless of their past cannabis use.”