New marijuana testing laws in the workplace — difference for commercial drivers

For anyone not working as a commercial driver, it is important to understand the new California law regarding workplace drug testing for marijuana. This new law applies only to marijuana and does not change testing procedures for alcohol or other drugs.

California AB 2188 became effective on January 1, 2024. It provides protection to most employees. It prohibits employers from disciplining or terminating workers for legal, off-the-job marijuana use. This law does not allow certain types of cannabis testing and prohibits employers from disciplining most employees for off-the-job cannabis use. It does not apply to DOT commercial drivers, employees in the building and construction trades and workers in positions requiring federal background investigation or security clearance.

Because urine and hair tests that are used to detect marijuana can detect use that occurred from days to weeks and sometime a month before the urine or hair was collected, these tests cannot distinguish between legal and other marijuana use. It is for this reason that AB2188 prohibits these tests and requires oral or breath tests instead. Employers can use oral swabs and breath tests to determine if an employee has used within the last 72 hours. These tests detect the actual mind-altering chemical in marijuana and make it easier to an employer to support the position that the employee who tests positive was impaired at the time of the test. Consequently, employees who test positive (fail) oral or breath tests can be disciplined up to an including termination, depending upon company policy.

Commercial Drivers

Since January 2020, there have been 224,000 positive drug and alcohol tests have been reported under DOT Drug and Alcohol Testing regulations, the majority for positive marijuana drug tests.

During the last four years, the Federal Motor Carrier Safety Administration (FMCSA) Clearinghouse shows that large numbers of DOT drivers remain in prohibited driving status after failing their drug tests. It is believed that many drivers are leaving the profession rather than enroll in the return-to-duty program. As of the end of September 2023, almost 150,000 drivers remained in prohibited status and 113,639 did not even begin the return-to-work program.

FMCSA regulators are warning commercial drivers of changes coming on November 18, 2024. After that date, drivers who violate the Department Transportation (DOT) drug and alcohol testing rules will not only be placed on prohibited driving status, but will also lose their commercial driver licenses and not be issued learning permits until they complete the federal return-to-work process.

The new rule states: “A driver with a drug-and-alcohol program violation is prohibited from performing safety-sensitive functions, including operating a commercial motor vehicle (CMV) for any DOT-regulated employer until the return-to-duty process is complete. Drivers with a ‘prohibited’ status in the Drug and Alcohol Clearinghouse will lose or be denied their state-issued commercial driving privileges.”

This Federal regulation change requires California’s DMV to take action when any drug or alcohol test failure is posted in the Clearinghouse.

When a driver violates the DOT drug and alcohol testing regulations, their employer is required to provide them with a list of DOT-qualified substance abuse professionals (SAP) for education and treatment. Drivers can then select a SAP based on their own research.

The SAP will then evaluate the driver, make a referral to some kind of treatment and determine when the driver has successfully completed.

The SAP then makes a recommendation for return-to-duty and follow-up testing. Follow-up testing can continue for up to 5 years and must include at least 6 unannounced tests during the first year.

To remain in a ‘not prohibited’ status, the driver must complete the follow-up testing specified by the SAP.

Any Teamster who is concerned with the drug and alcohol testing regulations should contact their Business Agent, Teamsters Assistance Program (TAP) or Teamsters Alcohol and Drug Rehabilitation Program (TARP) for more information