Workplace Screening Intelligence is a member of the National Drug and Alcohol Screening Association. Our CEO, Phil Dubois, is the Chair of the Government Affairs Committee. The Government Affairs committee is fighting for the Right of Employers to have the right to have a drug free workplace and continue to test should Marijuana be rescheduled to Schedule III. If this happens, DOT and DHHS would no longer to test for Marijuana as the laws and rules are currently written. The Government Affairs Committee has been working with Congress to get a Safety Carve Out so the transportation industry can continue testing for Marijuana and keep the transportation sector safe and drug free.

Rescheduling marijuana to Schedule III would abruptly end DOT-regulated testing for marijuana and would have a profoundly detrimental impact on transportation safety in the United States In addition to the DOT-regulated transportation safety-sensitive employees, the air traffic controllers employed by the Federal Aviation Administration (FAA) would no longer be subject to the deterrence and detection ensured by Federal marijuana testing.

This important connection to the rescheduling of marijuana and transportation safety was created through the Omnibus Transportation Employees Testing Act of 1991 (OTETA), codified at 49 U.S.C. 45102 and 45104 (aviation industry testing), 49 U.S.C. 20140 (rail), 49 U.S.C. 31306 (motor carrier), and 49 U.S.C. 5331 (transit). OTETA requires the DOT to follow the Substance Abuse and Mental Health Services Administration of HHS for the science of drug testing, including the drugs to be tested and the drug metabolite cutoff levels, which are outlined in the HHS Mandatory Guidelines. OTETA also requires DOT to use only HHS-certified laboratories for all drug testing required by DOT.

However, HHS does not have the authority to test for Schedule III drugs. The authority of HHS to test for and to certify laboratories for testing is provided by Executive Order 12564– Drug-free Federal Workplace of Sept. 15, 1986 (E.O. 12564). Under E.O. 12564. HHS is only authorized to test for drugs and certify laboratories to test for drugs that are in Schedule I or II of the CSA. Specifically, E.O. 12564, Section 7(c) states: “For purposes of this Order, the term ‘illegal drugs’ means a controlled substance included in Schedule I or II, as defined by section 802(6) of Title 21 of the United States Code”.1 Sections 3.2 (a) of both the HHS Mandatory Guidelines for Urine and the HHS Mandatory Guidelines for Oral Fluid state that an employee may be tested for “any drugs listed in Schedule I or II of the Controlled Substances Act.”2
If marijuana becomes a Schedule III substance, HHS would no longer be able to require testing for or to certify laboratories to test for marijuana. As a result, DOT immediately would no longer be able to test for marijuana because OTETA requires DOT to rely on HHS for the science of drug testing (the drug cutoff levels and scientific protocols), and DOT-regulated tests are required to be screened and confirmed at HHS certified laboratories. If a DOT-regulated safety-sensitive employee were to test positive for Schedule III marijuana, the testing would have occurred at a laboratory no longer certified by HHS and the test result would be legally unsustainable. Thus, the day after marijuana were to become a Schedule III drug, would be the day all marijuana testing for safety-sensitive employees would come to a screeching halt.

1 Executive Order. Federal Register. [Online] [Cited: September 25, 2019.] https://www.archives.gov/federal- register/codification/executive-order/12564.html .
2 HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine. 82 Fed. Reg. 7920 (Jan. 23, 2017) https://www.govinfo.gov/content/pkg/FR-2017-01-23/pdf/2017-00979.pdf ;HHS Mandatory Guidelines for Federal Workplace Drugtesting Programs using Oral Fluid. 84 Fed. Reg. 57554 (Oct. 25, 2019)

Workplace Screening Intelligence is a proud member of NDASA . If you have any questions about Marijuana Rescheduling or the effects on testing contact Phil Dubois at pdubois@workplacescreening.com

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