The U.S. Department of Transportation clarified what is classified as marijuana for testing purposes in a release dated Feb. 18, 2020. Below is the release from DOT.
DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE
The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.
We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: 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.
It is important for all employers and safety-sensitive employees to know:
The Department of Transportation requires testing for marijuana and not CBD.
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 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. **[i]
The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana 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.
It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This policy and compliance notice is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this policy and compliance notice is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations. Safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified at 49 CFR part 40.
The U.S. Department of Transportation published a final rule April 23 that makes technical corrections to regulations governing drug testing for safety-sensitive employees to ensure consistency with recent amendments made to DOT’s “Procedures for Transportation Workplace Drug and Alcohol Testing Programs,” which recently added requirements for testing for oxycodone, oxymorphone, hydrocodone and hydromorphone.
According to the release from DOT, the new changes to the department’s regulations make it necessary to refer to these substances, as well as morphine, 6-acetylmorphine and codeine by the term “opioids” rather than “opiates.”
This final rule amends the term in the FAA, FTA and PHMSA regulations to ensure that all DOT drug testing rules are consistent with one another and the mandatory guidelines for the testing program.
In November, the federal Department of Transportation finalized a rule that added four semi-synthetic opioids – hydrocodone, hydromorphone, oxymorphone and oxycodone – to its testing regimen, despite opposition from a number of unions. Brand names of some of those opioids include OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo.
Employees who are tested for these drugs and cannot offer a legitimate medical explanation such as a prescription will be recorded as testing positive.
Employees who have a valid prescription and test positive will have their results downgraded to a negative.
Medical review officers (MROs) cannot deny the legitimacy of a prescription for the purpose of establishing a legitimate medical explanation for the positive test. However, the MRO retains the right to flag safety concerns.
Clarification of what a “valid prescription” is, especially regarding medication given to take “as needed” as opposed to one prescribed to be taken in a strict time frame is needed and could be affected by the discretion of the MRO.
The rule establishes three new “fatal flaws” to a test: 1. Absence of a Chain of Custody Form (CCF); 2. A specimen is not submitted along with the CCF; and 3. Two separate collections are performed using a single CCF.
Comments from the TTD opposed the cutoff levels established for a positive test, requested additional training for MROs, sought clearer guidelines to define what constituted a valid prescription and implementation of a process to challenge the findings of an MRO. These suggestions were disregarded. In addition, the DOT also ended its blind specimen testing program over the TTD’s objection.
Members should contact the SMART Transportation Department Legal Department if any issues or difficulties arise from this expansion to the DOT’s drug-testing protocols.
In a letter to the Department of Health dated July 29, 2015, President Edward Wytkind of the Transportation Trades Department (TTD) of the AFL-CIO supported the gold standard in drug testing but opposed unsubstantiated hair specimen testing. Read the letter below.
On behalf of the Transportation Trades Department, AFL-CIO (TTD), I write to comment on the Substance Abuse and Mental Health Services Administration (SAMHSA) Request for Information Regarding the Use of the Hair Specimen for Drug Testing. By way of background, TTD consists of 32 affiliate unions that represent workers in all modes of transportation including those who would be directly impacted by any changes made to the current Mandatory Guidelines for Federal Workplace Drug Testing Programs. We therefore have a vested interest in this notice. In addition to the comments that follow, we endorse those submitted independently by TTD affiliates, the Air Line Pilots Association (ALPA), International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation Division (SMART TD), and the Transport Workers Union of America (TWU).
We reconfirm transportation labor’s commitment to ensuring the highest level of safety across our transportation system. We recognize that an important component of that standard is maintaining a drug-free workforce, and the workers represented by TTD affiliates are dedicated to upholding that principle. TTD unions also share in this commitment by operating effective programs on drug and alcohol education, prevention, and elimination.
As SAMHSA is aware, the Omnibus Transportation Employee Testing Act of 1991 requires the Department of Transportation (DOT) to adopt HHS’s Mandatory Guidelines for Federal Workplace Drug Testing Programs as the foundation of its policies for testing transportation workers for drugs and alcohol. Thus, any changes to HHS’s scientific and technical guidelines will necessarily change DOT drug and alcohol testing policies as well.
SAMHSA’s notice under consideration is a Request for Information regarding a variety of issues related to the use of hair specimen for drug testing. While it is not a proposal to permit hair specimen testing, the notice indicates that the Drug Testing Advisory Board (DTAB) is considering the scientific supportability of amending the Mandatory Guidelines to allow entities to test hair specimen for drug use.
Given that more than six million transportation workers are subject to DOT drug testing requirements, SAMHSA must ensure that any changes to the longstanding federal testing standards are backed by objective, scientifically and forensically sound evidence that prove a new testing method can be applied in an even and fair manner. However, the current state of hair testing cannot meet this requirement, and we respectfully request that SAMHSA not propose hair as an alternative specimen for federal drug tests.
SAMHSA’s Past Concerns for Hair Testing Remain
In 2004, SAMHSA proposed revisions to its Mandatory Guidelines to establish hair as an alternative specimen in drug tests. In the preamble of that notice, the agency identified external contamination and hair color as concerns particular to hair specimen testing. Four years later, the agency rescinded its proposal, writing that, “with regard to the use of alternative specimens including hair…significant issues have been raised by Federal agencies during the review process which require further examination, and may require additional study and analysis.” Those same concerns SAMHSA expressed in 2004 remain today.
As noted above, the Omnibus Transportation Employee Testing Act of 1991 requires DOT to test transportation workers for the illegal use of drugs. Restricting workers’ exposure to drugs or proximity to those who illegally use drugs is not contemplated under the statute. As such, SAMHSA must ensure that an alternative specimen and the standards by which to test the specimen can reliably and conclusively prove the donor ingested the drug and was not merely exposed to it. In the case of hair specimen, however, this is not possible.
Exposure to drugs in the environment can contaminate hair, potentially causing the specimen to test positive even in the absence of drug ingestion. In 2004, SAMHSA stated that washing procedures may remove some contaminates, but that testing for a metabolite indicative of only ingestion would differentiate contamination from actual use.
To date, experts have not identified a biomarker indicating ingestion of cocaine or marijuana. Without such a substance to test for, workers are forced to put their faith in labs’ washing methods to remove external contaminates. The theory holds that these procedures eliminate contaminates and what remains after completion of the wash is the presence of ingested drugs.
However, it is widely held that wash procedures are not capable of removing all contaminates from the specimen. The residue left behind is particularly troubling in hair testing because the concentration at which labs test for drugs in hair is extremely small – at the nanogram and pictogram levels. Thus, even the slightest remains of passive contamination could cause a worker to test positive for a drug she or he never ingested. As additional states legalize the recreational use of marijuana, this concern will continue to grow.
If an individual may be barred from gaining employment or fired from her/his job solely on the basis of a positive drug test, SAMHSA must have complete confidence in the accuracy and reliability of that test result. The possibility of passive contamination of hair specimen does not allow for such confidence.
Hair Color, Treatments, and Disparate Impact
Natural qualities and treatment of hair can also affect how hair specimen test for drugs. For instance, melanin is a known receptor for certain drugs. Some evidence shows that individuals with darker hair retain some drugs at greater levels than those with lighter hair. Also, cosmetic treatments such as dying or straightening can damage hair and increase the absorption of drugs. Similarly, curly hair may be prone to damage and thus more susceptible to drug bonding.
In light of this evidence, some have raised concerns for whether hair testing inherently has a racial bias. While SAMHSA dismissed this concern in 2004, we highlight an ongoing case alleging a hair testing program caused disparate on the basis of race.
Ten African Americans brought a case before the United States Court of Appeals for the First Circuit against the Boston Police Department’s (BPD) drug testing program. The plaintiffs claimed “that the department’s program, which used hair samples to test for illegal drug use, caused a disparate impact on the basis of race in violation of Title VII of the Civil Rights Act of 1964.”
As part of their case, the plaintiffs presented eight years of BPD drug program test results demonstrating a statistical significance in the difference in rates at which African Americans tested positive for cocaine compared to their Caucasian counterparts. In May 2014, the Court found that the “difference in outcomes…were not random” and that, “we can almost be certain that the difference in outcomes associated with race over that [eight year] period cannot be attributed to chance alone.” The Court held that the plaintiffs proved “beyond reasonable dispute a prima facie case of disparate impact under Title VII” of the Civil Rights Act of 1964. In doing so, the Court reversed and remanded the US District Court for the District Massachusetts summary judgement to the defendants.
While the case is now back at the District Court, the May 2014 decision must not be taken lightly. The possibility that a drug testing program can discriminate is deeply troubling. Discrimination has no place in federal regulation, and we must insist that new federal testing standards can be applied evenly to all participants.
Lack of Standardization
Today, virtually no standardization exists among hair testing programs. SAMHSA examines this issue in the notice, requesting feedback on whether federal standards should be set for various aspects of hair tests. As SAMHSA considers the lack of standards for hair testing, we refer the agency to the highly standardized procedures contained in the Mandatory Guidelines on urine specimen testing.
For decades, HHS has required employers to test workers for the illicit use of drugs by testing employee urine. The HHS Mandatory Guidelines provide comprehensive and standardized procedures for the complete process of urine testing. These requirements include that urine specimen collectors and Medical Review Officers receive initial and recurrent training on urine testing standards; specify exact procedures for capturing, labeling, and shipping specimens; and specify testing requirements and procedures labs must follow. These standards help ensure professionalism and consistency in the collection of specimens and helps reduce discrepancy and error in the treatment of specimen.
While labs performing hair testing conceal much of their information under proprietary protection, publicly available information shows vast inconsistencies in hair testing today. Labs collect different amounts of hair and from different locations, they boast superiority of their version of external contamination wash procedures and analysis of the wash solution, they use various methods to analyze hair specimen, and they even use different cutoff levels at which a test result is considered positive or negative. There is no standardized training requirement for collectors, and labs and their procedures are not held to the high standard of the National Laboratory Certification Program.
We understand that SAMHSA could set these parameters if it proposed hair specimen testing. We also recognize that labs performing these tests will likely provide the agency with a wealth of information about their procedures. But we urge the agency to critically examine that feedback. Just late last year, the Massachusetts Superior Court upheld a 2013 ruling by the Commonwealth of Massachusetts Civil Service Commission that “the present state of hair testing…does not meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards…” (emphasis in original). The Commission’s decision provides detailed concerns for a variety of aspects of hair testing, including problems with external contamination and the processes and cutoff levels used by the lab performing the employees’ hair tests.
We continue to believe that a drug-free, safe workforce can be achieved while simultaneously protecting the rights and dignities of individual workers. The longstanding HHS drug testing standards have proven effective at maintaining a high level of safety while helping to protect workers from flawed testing techniques, human error, and other issues capable of impacting a drug test result. As adopted by the Department of Transportation, today’s urine testing standards also provide workers with appropriate and necessary due process rights.
The decades-old standards are effective and should continue to be held as the gold standard. Hair testing is not mature enough to be a trusted measure of illicit drug use, and it should be rejected.
We appreciate the opportunity to comment on this notice, and we respectfully request our comments receive due consideration.
 Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs. April 13, 2004, 69 FR 71, 19673-19732.
 In addition to hair specimen, SAMHSA’s 2004 notice also proposed to make oral fluid and sweat alternative specimens for drug testing.
 Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Mandatory Guidelines for Federal Workplace Drug Testing Programs, Revised Guidelines. November 25, 2008, 73 FR 228, page 71858.
 Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs. April 13, 2004, 69 FR 71 19673-19732, page 19675.
 Ronnie Jones, et al. v. City of Boston, et al. No 12-2280 (1st Cir. 2014), page 3.
 Id. at 11.
 Id. at 47.
 Boston Police Department v. Commonwealth of Massachusetts Civil Service Commission, Suffolk Superior Ct. No. 13-1250-A
 In Re Boston Police Department Drug Testing Appeals (“D” Cases), Commonwealth of Massachusetts Civil Service Commission, page 107.
 Id. The 2013 case was brought before the Commonwealth of Massachusetts Civil Service Commission by ten Boston police officers who were terminated by the Boston Police Department after they tested positive for cocaine on hair tests. The officers denied use of cocaine and challenged their terminations on the basis that the science of hair testing is not sound and “the process used to collect and test their samples were seriously flawed, making the test results insufficient to prove ‘just cause’ for their termination.” The Commission reinstated six of the officers with back pay.