Marijuana Moment: Use Of Medical Marijuana Or Hemp Doesn’t Excuse Drug Testing Violations, Trump’s Transportation Department Warns

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The Trump administration is issuing a reminder to U.S. Department of Transportation (DOT) substance abuse professionals (SAPs) about federal drug testing policies—including a directive to disregard attempts to justify positive tests for THC due to a worker’s use of medical marijuana or hemp oil.

In a notice published in the Federal Register on Wednesday, DOT said SAPs have a “crucial role to play in recommending the level of treatment an employee may need in their path to returning to performing a safety-sensitive function after violating the DOT’s drug and alcohol testing regulations.”

“SAPs represent the major decision point (and in some cases, the only decision point) an employer may have in choosing whether or not to place an employee behind the steering wheel of a school bus, in the cockpit of a plane, at the helm of an oil tanker, at the throttle of a train, in the engineer compartment of a subway car, or at the emergency control valves of a natural gas pipeline,” the notice says. “The SAP’s responsibility to the public is enormous.”

The department said the reminder was deemed necessary after it “became aware” of “issues related to the SAP’s roles and responsibilities,” including with respect to when federally regulated transportation workers such as truck drivers may return to duty following a positive drug test.

While it’s unclear whether any of those cases involved cannabis-related testing violations, DOT felt the need to specifically reiterate that, when making recommendations related to such violations, SAPs “must not take into consideration” any employee’s attempt to “mitigate the seriousness” of the situation by claiming they used marijuana for medical purposes as a majority of states authorize or hemp oil that’s federally legal but sometimes contains excess concentrations of THC that trigger positive test results.

“Contact positives” are also not to be regarded as legitimate defenses against positive drug test results, nor should SAPs let a person’s consumption of food with poppyseeds factor into their recommendations for opioid-related violations, DOT said in the new notice.

This doesn’t represent a new policy that’s been instituted by the Trump administration; rather, it simply echoes existing procedure under the Code of Federal Regulations (CFR).

DOT Rule 49 CFR Part 40 Section 40.293 (Subpart O) states the following:

“For purposes of your role in the evaluation process, you must assume that a verified positive test result has conclusively established that the employee committed a DOT drug and alcohol regulation violation. You must not take into consideration in any way, as a factor in determining what your recommendation will be, any of the following:

1. 1. A claim by the employee that the test was unjustified or inaccurate;
   2. Statements by the employee that attempt to mitigate the seriousness of a violation of a DOT drug or alcohol regulation (e.g., related to assertions of use of hemp oil, “medical marijuana” use, “contact positives,” poppy seed ingestion, job stress); or
   3. Personal opinions you may have about the justification or rationale for drug and alcohol testing.”

Meanwhile, last year, DOT proposed a new rule to update its drug testing guidelines, revising terminology around cannabis in a way that provides more specificity related to THC.

In a notice published in the Federal Register last September, DOT said it was proposing the rule change to “harmonize” with cannabis terminology adopted by the U.S. Department of Health and Human Services (HHS).

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In 2023, the department separately finalized a rule permitting another alternative option to screening urine samples: saliva-based testing. Depending on frequency of use, THC is generally detectable in saliva anywhere from one to 24 hours after use, according to the agency.

A 2023 congressional report for a Transportation, Housing and Urban Development, and Related Agencies (THUD) bill, meanwhile, said that the House Appropriations Committee “continues to support the development of an objective standard to measure marijuana impairment and a related field sobriety test to ensure highway safety.”

A year earlier Sen. John Hickenlooper (D-CO) sent a letter to DOT under the Biden administration seeking an update on that status of the federal report into research barriers that are inhibiting the development of that standardized test for marijuana impairment on the roads.

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