Will DEA’s Move to Re-Classify Marijuana Affect Trucking? – Safety & Compliance

The federal government is proposing to re-classify marijuana as a less-dangerous drug, according to anonymous sources cited by the Associated Press. But what that would mean for trucking is unclear.

The Drug Enforcement Administration’s proposal, if finalized, would not legalize marijuana. It would move it from a Schedule 1 drug (a category that also includes heroin) to a Schedule 3, a category that includes medications such as ketamine and testosterone. These drugs are available by prescription.

Schedule III drugs are defined as having a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs are:

• Products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine)
• Ketamine
• Anabolic steroids
• Testosterone.

The DEA is acting on a recommendation from the Food and Drug Administration last August that the agency recategorize marijuana.

Lowering the classification would not make recreational use legal, but would allow for prescription medical use.

Like any federal regulatory proposal, it must be approved by the White House Office of Management and Budget before it is published in the Federal Register and opened up for public comments. Those comments then are considered in crafting a final rule. These are processes that can take years.

The New York Times has reported that Attorney General Merrick B. Garland planned to recommend the change to the White House Office of Management and Budget. After the office assesses the recommendation, it will still face a long road before taking effect, including being subject to public comment.

What Would Marijuana Reclassification Mean for Truck Driver Drug Testing?

Under the Federal Motor Carrier Safety Regulations, a person is not physically qualified to drive a CMV if he or she uses any Schedule I controlled substance, or is in possession of or under the influence of these substances while on duty.

Department of Transportation required drug tests currently require laboratory testing for five classes of drugs:

• Marijuana
• Cocaine
• Opiates – opium and codeine derivatives
• Amphetamines and methamphetamines
• Phencyclidine – PCP

Exactly how recategorizing marijuana as a Class III drug would affect the DOT’s drug-testing regulations for safety-sensitive jobs such as truck driving is not yet clear.

• Marijuana would still be illegal in multiple states. The change in classification would not automatically change state laws. Most states, even those with legal medical marijuana, would need to make changes to align with Schedule III restrictions.
• Changing the drug-testing regulations would require additional rulemakings from both the the Department of Health and Human Services and the Department of Transportation.
• There is no current standard roadside test for cannabis impairment, which could be a hurdle.
• Trucking companies could still have higher standards.

Current regulations state that drivers shall not report for duty or be on duty “when the driver uses any drug or substance identified in Schedule I,” or when the driver uses any non-Schedule I drug that is listed in other schedules without appropriate medical instructions.

Because Schedule III drugs are still controlled substances and require a prescription, any change likely would mean recreational use of marijuana would still be prohibited.

“I strongly doubt any reclassification of marijuana to Schedule III would change anything for commercial truck drivers since they are classified as a safety-sensitive occupation by the USDOT,” said Lane Kidd, managing director of the Alliance for Driver Safety & Security. “Marijuana use has no place in the cab of a large truck.”

ATRI Study: Protections Needed

The American Transportation Research Institute, in a 2023 report on the impact of marijuana legalization on trucking, said there were several protections that must be in place for employers in safety-sensitive industries in order to maintain safety while easing restrictions for marijuana use.

These include the development of a nationally recognized marijuana impairment test and impairment standards, as well as provisions that protect a carrier’s ability to screen employees for drug use.

In that study, a survey of motor carriers found that 60% had seen an increase in positive pre-employment tests or walkouts in the past five years.

When carriers in the survey were asked, “To satisfy FMCSA’s drug testing requirements, would you prefer that drivers and driver-candidates were required to take a marijuana test that measured impairment or very recent use (e.g., within the past day) instead of the current test, which can identify use many weeks prior?” 65% said yes.

Potential Impacts of Reclassification of Marijuana

We asked Brandon Wiseman with Trucksafe Consulting about the potential impacts of a change in the drug schedule for marijuana at the federal level.

“We would need some formal clarification from the USDOT and FMCSA concerning the impact to their drug and alcohol testing regulations,” he said.

“Whether it would require formal rulemaking on their part to clear the way for use among commercial drivers is unclear at this point, but at the very least, they would need to rescind their current notices on the topic that clearly prohibit marijuana use among drivers.”

The DOT could continue to prohibit or restrict marijuana use by drivers even if it were descheduled, Wiseman said, “Unless Congress were to step in and prohibit them from doing so, which I don’t foresee happening any time soon.”