DOT Not Taking CBD as Excuse for Failed Drug Test

On Feb. 19 the U.S. Department of Transportation clarified its stance that it does not test for CBD, but stated it will continue to penalize workers for THC.

Within a notice, DOT, which sets regulations for safety-sensitive employees such as transit vehicle operators and aircraft maintenance personnel, noted that while the Farm Bill removed hemp from the Controlled Substances Act, it did not except marijuana. This means hemp-derived CBD products with a THC concentration of less than 0.3% are not controlled substances. But any product, including those labeled as CBD, that breaks that THC limit is still a controlled substance.

With the legalization of hemp, DOT said they have received multiple inquiries about whether DOT-regulated safety-sensitive employees can use CBD products. They don’t want to get caught up in the testing protocols structures established after the 1991 Omnibus Transportation Employee Testing Act. The bill required all of the agencies under DOT’s regulatory umbrella to come up with a plan for drug and alcohol testing for safety-sensitive transportation employees.

“This includes pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others,” DOT noted in the announcement.

There were three main points DOT emphasized. The first is that they require testing for “marijuana and not CBD.” While CBD is present in both marijuana and hemp, what defines a plant as hemp is the presence of less than .3% of CBD. The second point was about the actual quality of the CBD marketplace right now.

“The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states,” The notice reads. “The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate.

“The FDA has cautioned the public that: ‘Consumers should beware purchasing and using any [CBD] products.’ The FDA has stated: ‘It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.’ Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.”

DOT’s final point was that CBD use is not a legitimate medical explanation for a laboratory-confirmed THC positive result.

“Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.” CBD products could lead to all the problems that would come with a failed drug test and DOT recommends people exercise caution when considering whether to use CBD products. DOT also said the announcement was meant to provide clarity to the public on existing requirements under the law or agency policies.

The DOT set its policies on recreational marijuana in the wake of the first states legalizing in December 2012. Back then, they wanted to make sure everyone knew what happened in Colorado and Washington had zero impact on the agency.

“Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used ‘recreational marijuana’ when states have passed ‘recreational marijuana’ initiatives,” the compliance notice reads. “We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use ‘medical marijuana’ when states have passed ‘medical marijuana’ initiatives.”

In September 2019 at the Montreal Council on Foreign Relations, U.S. Secretary of Transportation Elaine L. Chao noted the new rift between the U.S. and Canada when it came to pot during her speech.

“Traditionally, our two countries’ approach to road and automobile safety have been aligned,” Chao said. “Let me note an emerging challenge, however. As safety advocates know so well, alcohol and drugs play a disproportionate role in auto fatalities. Canada has legalized the recreational use of marijuana, while the United States has not. It is still illegal under U.S. federal law, although nine states have decriminalized it. While there is still much research to be done, data from states that have legalized is already pointing to the dangers of driving under the influence of both illicit and legal drugs.”

Chao did confuse legalization and decriminalization though as 25 states have some form of marijuana decriminalization on the books.

TELL US, have you ever had to take a drug test for work?