FMCSA Extends Comment Period on Drug and Alcohol Clearing House

Originally, comments were due Monday April 21, but the agency pushed that back to May 21 in response to a petition from the Owner-Operator Independent Drivers Association.  The rule will set up a system in which everyone associated with the federal drug and alcohol testing program will have to report test results, refusals to take test and return to duty results.

The purpose is to tighten the regulatory net by preventing commercial drivers from hiding drug or alcohol violations and ensuring that carriers are meeting their responsibility to test for substance abuse.

The Owner Operators Independent Drives Association (OOIDA) said it needs more time to prepare comments on the complex proposal, not just on behalf of its general membership but also on behalf of the drug testing consortium it runs for some of its members.

Aurico hosted a drug testing best practices webinar last month, titled “The Latest in Workplace Drug Testing Policies,” with presenter William (Bill) Judge a guru on state regulations relating to Drug Testing policies.  The Webinar was attended by hundreds of Human Resources participants, the participants shared a common question – Medical Marijuana and legalized Marijuana what are employers legally obligated to do regarding Marijuana in the work place.  Other questions included states that allow/do not allow post-accident drug testing, which state law should an employer follow with remote employees.  Bill Judge and Aurico recommends that employers review their state specific regulations as states regulations vary.  For example some states allow post- accident drug testing for non-regulated employees and yet other states prohibit such drug tests.  Regarding medical marijuana and legalized marijuana, a best practice for an employer would be to review their current drug testing policy and make sure to include a statement that all illegal drugs are prohibited in the work place including medical marijuana. 

The good news for employers is that so far the courts are finding cases in favor of the employer when challenged by an employee for testing positive for medical marijuana such as in the Colorado case in Colorado District Court, Curry v. MillerCOORS, the court held that the protected activity had to be lawful at both the state and federal level. Since marijuana is still illegal per se under federal law, the state protection for “lawful” activity failed.  In a California case Ross v Ragingwire, this case similar to the Colorado case the Supreme court explained “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.” 

Even with these cases in favor of employers, it is still imperative to make sure your policies are clear on your prohibitions and that you have your policies are reviewed by outside counsel or by an expert in state specific employment drug testing regulations.