California became the first state to legalize medical marijuana in 1996. Today, more than half of states have legalized medical or recreational marijuana, or both. While the growth of legalized marijuana may benefit those with a medical need, it complicates the landscape dramatically for others.

In response to changing state laws, the U.S. Department of Transportation (DOT) issued statements in 2009, 2012, and 2016 addressing legalized marijuana and transportation personnel. These statements definitively note that even when allowed under a state law “it remains unacceptable for any safety-sensitive employee subject to drug testing to use marijuana.”

This is important as marijuana is still classified as a Schedule 1 controlled substance under federal law. In addition, the DOT’s drug and alcohol testing regulations do not authorize “medical marijuana” as a valid medical explanation for a positive drug test result.

As safety-sensitive employees, school bus drivers are obviously required to follow state and local laws as well as a number of federal regulations specific to their job. As such, drivers are subject to pre-employment, post-accident, reasonable suspicion, and random drug and alcohol screenings. In addition, employers are required to conduct drug testing in accordance with the regulations. Clearly for employers and employees, there is no gray area on testing, yet either willingly or unwillingly, drivers are still finding themselves on the wrong side of this issue.

This issue has even found its way to the courts. The Massachusetts Supreme Judicial Court ruled in February 2019 on a case in which a driver admitted having used marijuana but disputed whether he was “legally intoxicated.” The justices recognized the following in their opinion:

“We acknowledge that it is often difficult to detect marijuana impairment because the effects of marijuana consumption vary greatly among individuals.”

In addition, the justices recognized the lack of a definitive field test for marijuana use as there is for alcohol. The Judicial Court ruled that the police could still arrest those driving under the influence of marijuana if the officer observes signs of use, as occurred in this case.

While this all seems cut and dry, it really isn’t. What happens when a driver realizes after the fact that they ate the wrong thing at a party? At a time when drivers can be hard to find, where is the line in the sand?

With advance planning, the ultimate answer is simple. Employers have the right to maintain and enforce “zero-tolerance” drug policies. And regardless of state law, employees can still be fired for off-duty marijuana use and, depending on state law, could risk losing their commercial driver’s license (CDL) for life.

So, what steps should an employer take to ensure clarity?  

• Maintain and consistently enforce a zero-tolerance drug policy. 

• Adopt a policy that prevents drivers from accepting food or drink from adult passengers.  

• Educate drivers that marijuana is often in baked goods or other products, making it difficult to detect.=

• Encourage drivers to ask questions before they eat or drink in any situation where others contribute food.

• Recognize that state laws can change, so be vigilant.

• Encourage your drivers to look out for themselves and the safety of those they transport when they are on and off duty.

• Practice safety first above all else.

Additionally, while we can hope that those traveling with children are not bringing marijuana with them, the responsibility lies with the employer and their employees to know the state law where they are located and those where they travel as adult passengers may not realize the laws regarding the transporting of marijuana.