Tuesday, October 22, 2019

Can CDL Drivers Smoke Pot After January 1?

No. Or at least not if they want to keep their jobs. Under federal law, marijuana is still illegal and U.S. Department of Transportation Regulations (USDOT) still require employers to test CDL holders that perform safety-sensitive position jobs (which almost all CDL holders do) for drugs, including marijuana (see 49 CFR Part 40). If the CDL holder tests positive for marijuana, he or she must be immediately prohibited from performing the safety-sensitive job.

What about the conflict between state and federal law? Illinois law makes it illegal for employers to discipline employees for consuming marijuana outside of work. What if a CDL holder uses cannabis outside of work? The CDL holder must still be removed from the safety-sensitive job. Federal law trumps state law, and the USDOT regulations take precedence over Illinois law. The Supremacy Clause of the Constitution holds that whenever state and federal law conflict, federal law controls.

Additionally, USDOT regulations state that to the extent the regulations conflict with state law, the USDOT regulations take priority. And the federal government, during both the Obama and Trump Administrations, has consistently stated that the federal government will continue enforcing federal laws punishing the use of cannabis even in states where it has been legalized. For example, a few years ago the USDOT wrote:
We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.
(You can see the full statement by clicking here.)

The USDOT regulations do not require a CDL holder testing positive for cannabis to be fired. They just require that he or she be prohibited from performing safety-sensitive job duties. Can the employer fire the employee if he or she is removed from the safety-sensitive job? What if the employee used cannabis outside of work? Wouldn’t that be a violation of the Right to Privacy in the Workplace Act?

I don’t think so. I believe an employer can take adverse action against a CDL holder who tests positive for cannabis and can no longer legally perform his job. The adverse action wouldn’t be for using cannabis. It would be for the employee being unable to legally perform his or her job. Nothing in the Right to Privacy in the Workplace Act or Cannabis Regulation and Tax Act makes it illegal to discipline an employee for being unable to perform his or her job duties as a result of cannabis use. In fact, just the opposite is true. With that said, no court has ruled on this issue, nor is it addressed in either the Cannabis Regulation and Tax Act, its regulations, or USDOT regulations.

Get in touch with me (tel: 312.604.9125; email: mdicianni@ancelglink.com) if you want more details about handling employees with CDLs. Also, do your supervisors understand how they need to manage their employees in the wake of the legalization of cannabis? I have been making presentations to HR professionals about the changes in the law. If you would like me to speak to your organization, contact me.