By Mark Boada, Executive Editor
I’ve attended and tuned into several presentations about fleets and marijuana recently, and the overall impression I was left with was that U.S. fleets have been thrown into a confusing mess and dilemma when it comes to handling the issue with their drivers. The big questions that the conversations have raised are: is it legal for fleet drivers to use marijuana in states where it’s been legalized and can fleets legally test their drivers for marijuana use without violating their privacy?
But on further review, it looks, at least to me, a lot less confusing, if not pretty simple. Still, that’s with the proviso that fleets need to be careful about their fleet driver policies and practices, and so should double-check with their legal and HR departments on some details.
But before clarifying the issues, first, let’s look at reasons why fleet professionals may be confused. I count six:
1. Conflicts among federal and state laws. Marijuana use for any purpose violates several federal laws and the laws of 17 states, but it’s legal for medical purposes in 33 states, plus the District of Columbia and Puerto Rico. Beyond that, it’s, legally protected for recreational use in 11 of those same states and D.C. In states where it’s legal, do federal laws still prevail? And what policies should fleets maintain and enforce if they operate in multiple states with differing laws?
For the record, these are the states where marijuana is legal when prescribed by a doctor (those that also allow recreational use are marked with an asterisk): Alaska*, Arizona, Arkansas, California*, Colorado*, Connecticut, Delaware, Florida, Hawaii, Illinois* (recreational use legal as of 1/1/2020), Louisiana, Maine*, Maryland, Massachusetts*, Michigan*, Minnesota, Missouri, Montana, Nevada*, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon*, Pennsylvania, Rhode Island, Utah, Vermont*, Washington*, and West Virginia.
2. Safety versus drivers’ privacy rights. Safety is one of fleets’ highest priorities, but that appears to be in conflict with every employees’ right to engage in legal activity outside work hours, like taking the occasional toke or more on a joint. How are they to know where to draw the line between maintaining a safe workplace and a driver’s right to engage in the lawful activity?
3. No medical standards of THC impairment. Unlike with alcohol, there are no medically established criteria for the amount of THC, the active chemical in marijuana, that causes driver impairment. The most commonly used test – urinalysis – can only tell if THC is present in a driver’s system, but not how much. Blood tests can measure how much there is, but medical science hasn’t determined the level at which a driver is impaired.
4. No way to determine the exact time of use. Traces of THC can show up in test results for weeks and even up to 90 days after someone has indulged. That means it’s virtually impossible to tell whether a driver used marijuana during work hours or on his or her own time.
5. Varying definitions of driving under the influence. State laws vary greatly over the amount of THC in a driver’s bloodstream for which they can be charged with driving under the influence. Some have defined a THC blood level, but the concentration varies from as little as 0.1 nanograms to 0.5 or more nanograms per milliliter; below that, in those states, while a driver may, in fact, be THC-impaired, but can’t be charged with DUI. Others, however, leave it to the judgment of arresting police officers entirely, and their observations that the way a driver was driving displayed obvious impairment. The issue here is a matter of employer liability for a serious or fatal crash, because it may hinge on whether a fleet driver was charged with DUI.
6. People using legalized hemp products may unknowingly be ingesting THC. As of last year, federal law declassified hemp as a class 1 drug and made it legal for interstate commerce and use. Hemp is a cannabis-family plant related to marijuana, but the oil extracted from hemp has a far lower concentration of THC, and can be used to treat certain medical conditions, like anxiety, depression, epilepsy, and chronic pain. It can be found in a number of food supplements, but their manufacture isn’t closely regulated, and some makers also add THC to them, so users may not know they’re actually ingesting as much THC as they would by using marijuana.
Given all these conflicting and vaguely defined issues, it is fair to say that the laws across the U.S. Can be a tangled mess for employers to deal with. But it appears to this observer, however, that fleets escape the worst of the confusion – at least for now. Here’s why:
1. Studies show that THC is a driving safety hazard. While some have questioned the validity of state statistics showing higher accident rates after recreational use of marijuana was approved, several studies have found that the drug does raise the risks of a traffic accident, although to different degrees. The passage below is from Verywellmind.com: (https://www.verywellmind.com/how-does-marijuana-affect-driving-63533) affect-driving-63533)
“An analysis of several studies (https://www.ncbi.nlm.nih.gov/pubmed/26878835) has found that the risk of being involved in a motor vehicle crash significantly increases after using marijuana. Another meta-analysis (https://www.bmj.com/content/bmj/344/bmj.e536.full.pdf) estimates that the risk of a crash that results in serious injury or death doubles after marijuana use. “In the 2015 ‘Traffic Safety Facts: Drug and Alcohol Crash Risk’ report, the National Highway Traffic Safety Administration (NHTSA) notes that THC increased crash risk by 1.25 times [or 25% higher]. This figure took into account contributing factors such as alcohol use and testing procedures for intoxication, so it is actually lower than some contradictory reports.”
2. Trucking fleets can legally practice zero THC tolerance. Federal laws and U.S. Department of Transportation regulations governing the operation of any vehicle requiring a commercial driver’s license trump any and all state laws that permit the use of marijuana. Therefore, drivers can be tested for THC and, at the very least, barred from driving CDL-necessary vehicles.
3. Non-CDL fleet drivers can also be tested and disciplined for THC at any level. Despite state laws legalizing the use of marijuana, employers still have the legal right to maintain a drug- and alcohol-free work environment. As the 6th U.S. Court Circuit of Appeals has held, “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.”
This means employers are allowed to test all job applicants and employees – including fleet and gray-fleet drivers – and take action against them for any trace of THC in their system, as long as the employer clearly informs them of the company’s drug-testing policies, including pre-employment screening and random drug testing.
Fleet driver drug policies may be stated in the job description, but most often are stated are in a clearly written agreement within the application, employee handbook or fleet safety policy, which applicants and employees may be required to sign in order to be hired or maintain employment. While many employers already have a company policy that directly address marijuana use, some don’t. Those responsible for fleet safety should review their driver policy provisions with their legal and HR departments to be sure they address drug use and that the policy is administered consistently for all employees.
4. Fleet drivers can’t claim special treatment for medical marijuana. Some drivers have sought an exemption from company anti-drug policies under the Americans with Disabilities Act (ADA). Courts have found, however, that the law doesn’t require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient. The 9th U.S. Circuit Court of Appeals has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
Warning: a dynamic situation
So, in view of all of the above, it looks like fleets can still enforce a zero-tolerance policy for marijuana use, including for medical purposes and recreation after work hours. The situation remains dynamic, though, in view of the general trend toward liberalization of marijuana laws across the U.S.
More states are likely to legalize it for one or both purposes, and some have tried to place restrictions on employers’ ability to test their employees. In general, though, states that have limited employers have carved out exceptions for safety-sensitive jobs, including driving. Fleets need to keep an eye out for those kinds of restrictions to be sure they continue to allow fleets to treat drivers separately.
On a wider scale, it’s possible that future federal legislation could reclassify marijuana from a Class 1 drug to a lower level. That raises the possibility that fleets could lose the ability to take action against THC-positive drivers. The American Trucking Associations is taking the lead on lobbying against any such moves, but it behooves every fleet trade association and fleet professional to take a stand to protect themselves from the risks that THC poses.