Trends in Cannabis Legalization
While employers in the transportation industry are acutely aware
of the effects COVID-19 has imposed over the last 18 months,
another phenomenon has been making itself known: the
ever-increasing tally of states and localities across the country
legalizing cannabis for medicinal and recreational purposes. A
majority of states now have enacted laws that permit patients
suffering from debilitating illnesses to access and use medical
cannabis. As of this writing, nineteen states, plus the
District of Columbia and Guam, have also legalized recreational
cannabis consumption.
These new laws have led to a trend of more people using cannabis
across the United States. For example, the United States Centers
for Disease Control estimates that 48.2 million people, or about 18
percent of all Americans, used cannabis at least once in
2019. Rates of cannabis use are higher in states where
medical or recreational cannabis has been legalized. In Colorado
and Washington, where recreational cannabis was legalized in 2012,
at least 26 percent of adults regularly use cannabis. There also
has been a notable increase in cannabis use in states where
cannabis was more recently legalized, with 22 to 25 percent of
adults regularly using cannabis in Maine (2016), Massachusetts
(2016), and Alaska (2014).
These trends present both challenges and opportunities for the
transportation industry. For example, many trucking industry
employers are trying to address the issue of an aging workforce by
appealing to a younger generation of workers. At the same time,
this pool of potential employees is more likely than ever to use
medical or recreational cannabis. On the opportunity side, the
nascent cannabis industry will require increased logistical
support, from transport and storage to delivery services. Some
state lawmakers are also eyeing the potential for fledging
interstate import and export businesses if and when federal laws
change.
Managing a Workforce that Uses Cannabis Now More Than
Ever
In tandem with laws legalizing medical and adult-use cannabis,
the growing trend is for laws in some of these jurisdictions to
provide protections to those job applicants and employees who
lawfully use cannabis outside of the workplace, leading many
employers across the United States to take a hard look at their
drug testing and abuse policies.
While employers in other industries are beginning to address
widespread staffing shortages by modifying (or discontinuing) drug
testing for THC metabolites, this is not currently an option for
most transportation employers. In 29 C.F.R. § 40 (Part
40), the United States Department of Transportation (DOT) requires
drug and alcohol testing for all workers − including
self-employed individuals or owner-operators and contractors
− who perform safety-sensitive functions. Safety-sensitive
functions include, but are not limited to, driving a truck,
operating a train or ferry, repairing transportation equipment, and
working on pipelines. For these employees, Part 40 requires testing
for five classes of drugs: (a) cannabis metabolites (marijuana);
(b) cocaine metabolites; (c) amphetamines; (d) opioids; and (e)
phencyclidine (PCP). These substances are subject to drug
testing because of a legislative determination regarding the
“incidence and prevalence of the abuse of these…substances
in the general population…”
DOT allows employees in safety-sensitive positions, including
drivers, to use prescription medication and over-the-counter (OTC)
drugs under certain circumstances. But DOT does not recognize
physician recommendations for medical cannabis use or allow an
exception for use of recreational cannabis in states where it is
legal.
DOT most recently revisited this issue in 2017 and 2018 as a
part of a notice of proposed rulemaking. It was determined that
changes in state law “will have no bearing on [DOT’s]
regulated drug testing program” and that Part 40 “does
not authorize the use of Schedule I drugs, including marijuana for
any reason.” DOT also confirmed that Medical Review
Officers (MROs) will not verify drug test results as negative if an
employee has lawfully used recreational or medical cannabis in a
state where it is legal to do so. Accordingly, DOT takes the
position that transportation industry employers subject to Part 40
do not need to accommodate legal, medical, or recreational cannabis
use because marijuana remains a Schedule I drug under federal
law.
Transporting Cannabis and Cannabis-Related
Products
For transportation industry employers looking to stake a claim
in the nascent cannabis industry, there are, of course, risks that
come along with the potential rewards. Transporting cannabis
internationally or across state lines remains a felony because
cannabis is still a Schedule I drug under federal law. The
Department of Homeland Security, Customs and Border Protection
(CBP), federal law enforcement agencies, and state law enforcement
agencies continue to closely monitor transportation between
jurisdictions where cannabis is legal and jurisdictions where it is
not (for example, across the United States – Canada border).
Knowingly or unknowingly transporting cannabis internationally or
across state lines can result in severe penalties, including
seizure and impounding of vehicles and equipment, large fines, and
imprisonment. Transportation employers who find themselves in this
predicament can file a petition with CBP for mitigation and/or
return of impounded vehicles, but the process is involved,
especially if the amount of money or substances involved dictates
the petition be handled through CBP’s headquarters in
Washington, D.C.
However, transportation of cannabis within states where cannabis
has been legalized is permissible, provided that a license is
obtained, and state-specific safety and security regulations are
followed. In New Jersey, for example, licenses will be issued
for Class 4 Cannabis Distributors (transportation of cannabis items
in bulk between cannabis growers, manufacturers, and retailers
within New Jersey) and Class 5 Cannabis Deliveries (transportation
of purchased cannabis and related supplies from retailers to
customers). Once distribution licenses are issued, “secure
transport” regulations will require licensed distributors to
equip vehicles with secured lockboxes, GPS tracking systems, and
heating or air conditioning systems to adequately maintain correct
temperatures for cannabis storage. Cannabis transporters will also
be required to maintain certain levels of insurance and keep
detailed records around staffing and employment.
These types of regulatory standards will likely become the
industry norm in states permitting cannabis use and sales.
Transportation industry employers should work closely with
experienced counsel who understand the applicable regulations to
avoid fines, penalties, and possible criminal exposure.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
