Will the The CARERS Act affect DOT Drug Testing Programs?

Senators Rand Paul (R-KY), Cory Booker (D-NJ), and Kirsten Gillibrand (D-NY) introduced legislation amend the Controlled Substances Act (CSA)  that will allow the use of medical marijuana in states where it is legal without risk of federal prosecution.

What are the chances of passage?

With the Republican dominated Congress and the current political landscape being so toxic, one could see this one being DOA. However, there’s some serious momentium in both public support and recent legislative victories that might make this an interesting one to watch. Consider…

• 23 states and the District of Columbia have laws that legalize and regulate marijuana for medicinal purposes
• Polls show roughly three-quarters of Americans support legalizing marijuana for medical use.
• According to a recent Gallup poll 58% of the public feels marijuana should be flat out legalized
• DrugPolicy.org nation’s leading organization promoting drug policies calls it “our best chance ever to end the federal war on medical marijuana”.

Pro-marijuana legislation is on a serious winning streak at the state level. Even at the federal level Congress recently approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws. Among the conservative crowd change seems to be in the air. Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) are on record supporting states’ rights to legalize pot and according to a PEW poll, 63% of young Republicans are in favor of legalization.

With all this public support and momentum, it might be that the only thing standing in the way is politics. In other arenas, Republicans have taken strong stances against anything that might look like a victory for the left.

How would this impact DOT regulated drug testing programs?

Nothing in the proposed CARERS Act allows doctors to directly prescribe Marijuana as medication. Although it would reclassify marijuana from a schedule I to schedule II classification (recognizing its medicinal value) – doctors cannot prescribe substances that have not been approved by the FDA. Currently doctors can only make a recommendation which is a prerequisite for users to obtain a medical marijuana card and register with the state, but they cannot write a prescription. Therefore, any DOT employee performing a safety sensitive job could not have a THC positive drug test laboratory overruled by a medical review officer.

The DOT released a formal notice regarding medical marijuana clarifying their position. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

According to Senator Rand Paul’s website the Compassionate Access, Research Expansion, and Respect States (CARERS Act) would effectively:

1. Recognize states’ responsibility to set medical marijuana policy & eliminate potential federal prosecution 
2. Reschedule marijuana from schedule I to schedule II, recognizing “accepted medical use” – Marijuana is currently listed as a Schedule I drug, meaning it does not currently have accepted medical use in the United States.
3. Allow states to import cannbidiol (CBD), recognized treatment for epilepsy and seizure disorders –
4. Provide veterans access – Doctors in Department of Veterans Affairs facilities are currently prohibited prescribing medical marijuana. The CARERS Act would allow VA doctors to recommend medical marijuana to military veterans.
5. Permit financial services and banking for marijuana dispensaries 
6. Expand opportunities for research – The CARERS Act removes unnecessary bureaucratic hurdles for researchers to gain government approval to undertake important research on marijuana.

If the CARERS Act passes it’s sure to create more confusion for employers and employees who have been inundated with a slew of new state laws. This happened, and is still happening with states like Colorado allowing recreational marijuana use. HR, safety managers and drug free workplace coordinators managing DOT regulated programs should focus on ensuring their staff has a clear understanding of the DOT drug testing regulations so they don’t have to rely on hearsay from their fellow employees.