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By: Melissa Chapaska
As Pennsylvania’s medical marijuana program moves closer towards implementation, anxious prospective patients are likely wondering about their rights under Pennsylvania’s Medical Marijuana law. Recently, the Pennsylvania Department of Health answered many patients’ questions with the release of draft regulations for patients and caregivers. Understanding the importance of patient input in the program, the Department is accepting comments on the draft regulations until October 2nd.
One area not yet addressed by the regulations, however, is guidance for prospective patients that are licensed commercial (CDL) drivers. The situation for CDL drivers is unique because, unlike other employees, CDL drivers are subject to extensive state and federal regulation, including federal DOT drug testing.
While Pennsylvania Medical Marijuana Act does provide protection for medical marijuana patients, this protection is subject to some limitations. Of specific relevance to CDL driver patients is Section 2103(b)(3), which provides, “[n]othing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.”
While the Pennsylvania Department of Transportation (PennDOT) is responsible for licensing CDL drivers in the Commonwealth, the legal basis for CDL and CDL drug testing is provided by 49 CFR 383. The regulation found at 49 CFR 383 implements the 1991 Omnibus Transportation Employee Testing Act, requiring DOT agencies to implement drug and alcohol testing of safety-sensitive transportation employees.
For this reason, as PennDOT explains in its Employee Guide to CDL Drug and Alcohol Testing, “[m]edical marijuana, even if legally prescribed in a state, is an illegal drug under federal law. The use of medical marijuana is thus prohibited conduct for CDL-covered employees.” Accordingly, state-legal medical marijuana cannot be used as a defense to a failed CDL drug test pursuant to 49 CFR 40.151(e), which does not authorize state-legal medical marijuana as a valid medical explanation for a transportation employee’s positive drug test result. The penalty for an employee’s positive drug test is steep: when a driver tests positive for marijuana in their system, regardless of the circumstances, the employer must terminate that employee in accordance with US DOT regulations.
Based on our previous post on federal protections for medical marijuana, patients may still question whether the protections provided by the infamous US Department of Justice (DOJ) “Cole Memo” or Rohrabacher-Farr spending restriction prohibit US DOT from penalizing CDL drivers that are state-legal medical marijuana patients. Unfortunately for CDL driver patients, because US DOT is a separate agency, not under the DOJ, US DOT is not bound by the “Cole Memo” or restricted by the Rohrabacher-Farr spending prohibition. In fact, in a guidance letter, US DOT made clear that “DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.”
In conclusion, while Pennsylvania’s medical marijuana program will provide relief to numerous suffering patients throughout the Commonwealth, CDL drivers suffering from serious medical conditions are best served by not seeking medical marijuana as a treatment.
