Cannabis confusion: Thousands of truckers are fired amid supply chain woes

The Biden administration is vowing to put more commercial truck drivers on the road to help ease the supply chain snarls plaguing the economy.

But one obstacle of the government’s own making is hampering that goal — a federal ban on marijuana use that has sidelined tens of thousands of truckers.

Washington’s zero-tolerance approach to weed has swept up drivers who lit up only when off-duty, as well as those who consumed hemp derivatives such as CBD oil that are advertised as non-psychoactive, according to industry experts and court documents. Truckers who drive cross-country also face a morass of confusing state regulations, as 18 states have legalized recreational marijuana use and another 37 allow medical use.

Another complication: The only accepted roadside tests for marijuana use can produce positive results more than a month after the person smoked or consumed it, unlike commonly used breathalyzer tests for alcohol impairment, which give a snapshot of the moment the test was conducted.

Paul Enos, CEO of the Nevada Trucking Association, a state where recreational marijuana use is legal, said tests that capture weeks-old use force people out of the industry who are not necessarily a danger on the roads.

“It's an issue for our industry when you look at the number of people who are no longer driving," Enos said.

He added that removing drug-using drivers from the roads can help prevent impaired driving. Still, "We would all benefit from having a reasonable impairment test that is not going to ... cause our highways to be less safe."

And drivers who test positive find themselves in a Catch-22: Many trucking companies will immediately fire drivers with a positive drug test, but the process of returning to the road requires an employer sponsor.

All this comes as President Joe Biden and his appointees, including Transportation Secretary Pete Buttigieg, are trying to bring more truckers into the workforce, for example by expanding apprenticeship programs that make it easier to obtain a commercial driver’s license and promoting opportunities for women and veterans to enter the field. Their aim is to get goods out of ports and warehouses faster, lessening the supply chain crunch that has contributed to inflation and shortages of certain goods.

Sean Garney, co-director of Scopelitis Transportation Consulting, a firm that advises trucking clients on rules and regulations, said the industry loses drivers to other jobs where marijuana use isn’t a potential career-killer.

“But we’re bound by federal rules that classify marijuana as a Schedule 1 drug,” Garney said.

The Biden administration hasn’t endorsed relaxing federal marijuana laws, but the Transportation Department is soliciting comments on a new standard for marijuana tests that would zero in on recent use. That process is still in the early stages.

The trucking industry acknowledges that the rules are confusing but argues that prohibitions on marijuana use are not a huge issue because the vast majority of drivers don’t test positive. It says relaxing the testing rules would result in more impaired drivers on the road.

“We often have to explain to members that things like CBD oil, which is all over the place, could cause you to test positive,” said Andrew King, a research analyst with the Owner-Operator Independent Drivers Association, which represents the interests of independent truck drivers. “But it’s better to be safe than sorry. You have a federal license so you have a higher standard.”

Others say drug testing is worsening the industry’s workforce problems.

“We're excluding a significant portion of that trucker industry," said Chris Harvey, Wells Fargo’s head of equity strategy, during a conference in February.

Many drivers never come back

Federal rules have long prohibited cannabis use by people with commercial drivers’ licenses, even in states where it’s legal. License-holders who test positive for cannabis or any other prohibited drug can’t drive again until they finish an evaluation process that can take months or longer.

Of 126,043 drug violations by commercial drivers reported between January 2020 and this March, 56 percent were for marijuana, according to a DOT drug-testing clearinghouse that went live two years ago. All resulted in the driver being taken off the road temporarily.

Many simply don’t come back.

Only a quarter of the 119,113 drivers with at least one drug violation since January 2020 have completed the process to return to the road. Of the nearly 90,000 drivers now prohibited from driving, more than 67,000 have not started the return-to-duty process. Many have left the profession, Garney said.

“You need an employer sponsor. If you’re not employed you can’t enter the system,” Garney said. “Some employers have second chance policies, others don’t. Once this happens the drivers, per the rules, really have no recourse to get back into the industry.”

That’s bad news for a field that has become a weak link in the U.S. supply chain, adding to the difficulties in moving goods from ports and factories. Truck drivers already face other burdens that make the job unattractive, including long hours behind the wheel and abundant unpaid time spent waiting to pick up a payload.

Meanwhile, employers who fear litigation are wary of hiring drivers with a positive marijuana test on their record, even if they have been cleared to return to duty. Members of the Nevada Trucking Association are "thinking about lawsuits every day," Enos said, citing the proliferation of truck accident attorneys in recent years.

‘This just makes no common sense’

Though states administer the process to receive a commercial driver’s license, they are issued subject to federal standards. That means truckers in Colorado, where recreational cannabis was legalized a decade ago, will be barred from driving if they test positive for marijuana use.

Drivers are subject to drug testing before they’re hired and after they have an accident, as well as at random. And if a driver fails, navigating a return to duty can be daunting. The process, in addition to support from an employer, includes an evaluation from a substance abuse professional who determines the type of treatment needed, and how long that rehabilitation may take.

Truckers, trucking companies and medical professionals have expressed frustration with the current rules for testing in comments submitted to the DOT on a proposal for new drug tests based on saliva. Such tests would better capture marijuana impairment, as opposed to weeks-old exposure.

“Of course we don’t want drivers under the influence and driving,” wrote Lost Sheep Trucking, an Alabama-based company that commented on the drug testing rule. But the company noted that marijuana “stays in the system for 30-90 days vs cocaine and other illegal drugs [that] leave quickly. So drivers who are off duty or even on vacation for a week can’t enjoy marijuana in a legal state. This just makes no common sense.”

The issue is clearly on truckers’ minds, too. Many posts on the subreddit r/Truckers involve drivers seeking advice about whether they can use cannabis when they're on vacation or aspiring truckers wondering how long to wait between quitting cannabis and starting commercial driver school. Others seek advice about getting a job after testing positive for marijuana or after holding a medical cannabis card in a legal state.

“Many employees may misunderstand that while their states permit use of marijuana, Federal law, including DOT rules, does not," wrote Robert Ashby, a former acting director of DOT’s Office of Drug and Alcohol Policy and Compliance, in comments submitted to the department. “This misunderstanding can result in many unnecessary positive tests.”

He said trucking companies and the government need to do more to educate truckers on the rules.

Dan Horvath, the vice president of safety policy at the American Trucking Associations, agreed that the situation is ripe for misunderstandings, especially with state after state legalizing the use of cannabis in some form.

“Despite where the driver is based, nothing has changed,” Horvath said. “That really leads to a misconception of what drivers can and cannot do.”

Enos recounted the experience of a truck driving school in Las Vegas that shut down during the pandemic and chose not to reopen after an analysis revealed that 64 percent of its applicants were testing positive for marijuana. Nevada legalized adult use of marijuana in 2016.

The Federal Motor Carrier Safety Administration, the federal agency responsible for trucking regulations, touted the number of truckers getting hired in recent months when asked about the thousands of truckers who are taken off the road after testing positive for marijuana. 

“Truck driving employment numbers in 2021 were the highest they’ve been since 1994,” agency public affairs officer Martha Threatt said, adding that states have processed more than twice as many commercial driver’s licenses in January and February of this year than in the same period of 2021.

A search for better tests

Urinalysis and hair tests are the most common methods of drug testing for transportation industries. Urinalysis, which is part of the DOT-required physical exam, can detect marijuana a month after use — or even longer for habitual users — in contrast to the one to three days that cocaine stays in the system. But the tests may not even catch drivers who are impaired at the time of their tests. No marijuana equivalent exists for the breath analyzers that police use for drunken drivers.

The new saliva tests would detect marijuana use within six to 24 hours after exposure, and would include all forms of ingestion, such as smoking and edibles. 

DOT proposed allowing the fluid tests in February, saying they "will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals." The agency accepted public comments until April 29.

Horvath said the ATA supports oral fluid testing because “it avoids cheating” and is cheaper to administer.

Marijuana testing poses a technical challenge because THC, its psychoactive component, binds to fat cells and can linger in the body long after the drug’s intoxicating effects have worn off.

“I’m not sure it’s a good idea to fire [workers] because they ingested THC months before,” said Hojeong Yu, the lead author of a recent study on oral fluids tests. But urine tests right now are the “simplest and easiest” on-site drug test to use.

Blood tests are better at detecting recent use — but impractical compared with oral fluid testing because they require a medical professional to draw the blood and for the blood to then be analyzed at a lab.

Industry caught in the middle

The trucking industry isn’t clamoring to relax the drug restrictions, despite acknowledging that the differences between federal law and ever-more-lenient state standards can be confusing for drivers.

Both ATA and the OOIDA argue that the testing rules, combined with the federal clearinghouse created in 2020, are necessary to keep impaired drivers off the road while preventing job-hopping drug users from concealing their past test results. And they say the number of positive tests is low compared with the 2.8 million commercially licensed drivers registered with the federal clearinghouse.

“There was nothing this thorough in place prior to the clearinghouse,” the ATA’s Horvath said. “While very well noting that this was going to have an impact on the number of drivers that can operate, we’d rather have an empty truck than a driver under the influence on the road.”

Still, he acknowledged that conversations within the industry are happening about whether the reliance on testing should change.

“We’re starting to see it come up more and more that marijuana shouldn’t be [tested],” Horvath said. “We’re beginning to have more discussions on the impairment factor versus the general use factor.”

Large employers like Amazon have moved away from marijuana testing for non-DOT-regulated workers, thus expanding its potential employee pool. State courts are increasingly ruling in favor of employees who sue after being fired for a positive marijuana test.

Legal but largely unregulated substances like CBD are also complicating the landscape.

In 2015, a commercial truck driver of nearly 30 years sued the cannabis brand Dixie after he failed a random DOT drug test. Douglas Horn was working as an over-the-road hazmat driver when he consumed a CBD product advertised as having 0 percent THC, according to the complaint. He was fired after flunking the test and had trouble finding similar employment.

After a lower court dismissed most of his claims, Horn is appealing his case to the 2nd U.S. Circuit Court of Appeals. Another truck driver, Trevor Darrow, said he took CBD gummies labeled “no THC” and ended up being fired from his job for failing a drug test. He sued the manufacturer and eventually settled.

Biden, at a recent White House event, made it clear that the U.S. needs more truckers, saying that they “are the people that literally make [the country] run.”

“I have nothing against investment bankers,” Biden said, while noting that “they could all retire and nothing much would change.” He told the drivers: “You all quit, everything comes to a halt.”

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By: Alex Daugherty and Mona Zhang
Title: Cannabis confusion: Thousands of truckers taken off the job amid supply chain woes
Sourced From: www.politico.com/news/2022/05/07/cannabis-truckers-supply-chain-woes-00030508
Published Date: Sat, 07 May 2022 06:00:00 EST

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