The Office of Drug and Alcohol Policy Compliance of the U.S. Department of Transportation (“DOT”) has reminded the regulated public that the use of “medical marijuana” pursuant to certain state laws does not excuse a transportation employee’s positive drug test result, despite a Government decision to relax federal prosecutions for such use.  The DOT regulates truck and bus drivers, railroad employees, airline employees, transit system workers, and pipeline and hazardous material workers, and certain workers on navigable waters.

In guidelines issued on October 19, 2009, to federal prosecutors in states that have enacted “medical marijuana” laws, the Department of Justice said that the prosecution of seriously-ill individuals who use “medical marijuana” pursuant to valid prescriptions and their caregivers “is unlikely to be an efficient use of limited federal resources.”  Responding to inquiries resulting from the Justice Department’s action, DOT announced October 22, 2009, “[T]he 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.”

The use of “medical marijuana” under a state law is not a valid medical explanation for a transportation employee’s positive test result, according to DOT drug testing regulations.  The Department’s regulations specifically prohibit Medical Review Officers from verifying a drug test as negative based upon information that a physician recommended or prescribed “medical marijuana” to the employee.  It therefore “remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”