Beginning January 6, 2023, motor carrier employers subject to the regulations of the Federal Motor Carrier Safety Administration (FMCSA) may conduct part of the safety performance history investigation that is required for all driver-applicants in the FMCSA Clearinghouse.  Specifically, employers are required by 49 CFR § 391.23(e)(1) – (3) to obtain information about a driver-applicant’s drug and alcohol violations that occurred in the last three years.   Previously, employers were required to contact directly all U.S. Department of Transportation (DOT)-regulated employers that employed the driver-applicant in the past three years to gather that information.  Now that the FMCSA Clearinghouse has been in existence for three years as of January 6, 2023, employers may satisfy this requirement (as to prior FMCSA-regulated employers) by conducting searches in the FMCSA Clearinghouse on and after that date. 

Employers should take note of the following important issues, however:

  • the Clearinghouse contains only information reported by FMCSA-regulated employers.  So if an applicant previously worked for an employer that is regulated by another DOT agency, such as the Federal Railroad Administration, Federal Transit Administration, Federal Aviation Administration, etc., the employer still will need to contact each of those employers directly to obtain the required information.
  • In addition, employers should be aware that they still will need to contact directly an applicant’s previous FMCSA-regulated employers for the past three years to obtain the accident history information required by 49 CFR § 391.23(d).

Motor carrier employers also are reminded to conduct the annual queries in the FMCSA Clearinghouse for each CDL driver they employ.  Employers can log in to the Clearinghouse to see whether their annual queries are due.

Voters in Maryland and Missouri approved laws to legalize recreational marijuana on Election Day 2022.  Recreational marijuana ballot initiatives did not pass in Arkansas, North Dakota and South Dakota.


Maryland voters approved a state constitutional amendment that will allow the use of cannabis by anyone over the age of 21 on or after July 1, 2023, subject to the General Assembly passing legislation concerning the regulation, distribution, possession and taxation of marijuana.


Missouri voters also approved an amendment to the state constitution.  The amendment addresses both medical marijuana and recreational marijuana. 

The medical marijuana law will permit nurse practitioners to recommend medical marijuana use to their patients in addition to physicians.  It also will permit the use of “marijuana-infused products,” i.e., products that are infused, dipped, sprayed, coated or mixed with marijuana or marijuana extracts.  Those products may be vaporized or smoked, or may consist of edible products, ingestible products, topical products, suppositories, and “infused pre-rolls” (a type of consumable or smokable product).  Medical marijuana cards will be valid for three years.  While the medical marijuana law does not permit operation of a motor vehicle while under the influence of marijuana, the law is now revised to say that the arrest or conviction of a medical marijuana user will require evidence that the user was in actual physical control of the motor vehicle and may not rely solely on the presence of THC or THC metabolites in the person’s system.

The medical marijuana law still prohibits legal claims against employers based on an employer’s prohibition of being under the influence of marijuana while at work.  However, new provisions state that employers may not discriminate against medical marijuana users unless:  failure to do so would result in the loss of a monetary or licensing-related benefits under federal law, or unless the person was under the influence of marijuana on the employer’s premises or during work hours. This discrimination prohibition includes when an employee has tested positive for marijuana, unless the employer can show that the employee was “under the influence” at work, which is not defined.

The constitutional amendment also permits the recreational use of marijuana by adults age 21 and older.  Employers are not required to permit or accommodate the use of marijuana at work or on the employer’s property.  Employers are permitted to take adverse employment actions if a person is working while under the influence of marijuana. It is not clear whether this includes a positive drug test result for marijuana.

Finally, the new law will allow individuals who are serving prison sentences for certain crimes including possession of up to three pounds of marijuana to petition the sentencing court to vacate the sentence, order immediate release and expunge the government’s records.  There are additional provisions addressing expungement of criminal records for those who previously served prison sentences related to certain marijuana-related crimes.

The Missouri constitutional amendment will take effect thirty days after the election.

Employers in Maryland and Missouri should review their drug and alcohol policies to ensure compliance with these new laws.

Puerto Rico’s disability discrimination statute (Law 44-1985), the local counterpart of the Americans with Disabilities Act (ADA), has been amended to extend coverage to registered and authorized medical cannabis patients. The amendment (Law 90-2022) went into effect on October 14, 2022, upon Governor Pedro Pierluisi’s signing.

Prior to the amendment, Law 44-1985’s definition of a “qualified individual with a disability” specifically excluded all active users of illegal substances, as defined by federal law. Since marijuana is illegal under federal law, medical cannabis patients were not protected under the statute.

This exclusion appeared to conflict with Puerto Rico’s Law 15-2021, which created a protected category for registered and authorized patients. Law 15-2021 provides that an employer cannot discriminate against registered and authorized patients of medical cannabis in the recruitment, hiring, designation, or termination process or when imposing disciplinary actions. For more on Law 15-2021, see our article, Registered and Authorized Medical Cannabis Patients in Puerto Rico Gain Employment Protections.

With the new amendment, the apparent conflict has been reconciled.

For employees who comply with the requirements to be an authorized medical cannabis patient, employers will have to go through an interactive process with the employee to determine if the use may be accommodated.

Importantly, at this time, the ADA does not protect cannabis patients since it is an illegal substance under federal law. For employees in Puerto Rico, however, the more beneficial protections apply.

Employers should revise their practices and policies to comply with the new amendment.

Governor Gavin Newsome signed into law September 19, 2022 several measures relating to marijuana, including one that prohibits employment discrimination based on off-duty use of marijuana.  The law takes effect on January 1, 2024.

The law will prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment, if the discrimination is based on:

  • The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
  • An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

The law further notes that:

Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.  After THC is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite.  These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks. . . . While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.

As science has improved, employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites.  These alternative tests include impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.

The law does not further define “nonpsychoactive cannabis metabolites” and it is unclear what “alternative tests” are being referred to as “tests that do not rely on the presence of nonpsychoactive cannabis metabolites.”  While drug tests are being developed to detect recent use of cannabis, at the present time, such tests are not available.

The law does not apply to employees in the building and construction trades.  It also does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense or equivalent regulations applicable to other agencies.  The law also does not preempt state or federal laws requiring drug testing of applicants and employees, including law and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Employers should review their drug testing policies to ensure that their practices will comply with the new law by the time it takes effect

The New Jersey Cannabis Regulatory Commission published guidance on September 9, 2022, for employers to address marijuana impairment in the workplace.  The guidance does not, however, provide the long-awaited certification standards for Workplace Impairment Recognition Experts.

In February 2021, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalized adult use recreational marijuana.  The law allows employers to conduct drug testing for marijuana as long as the drug test includes scientifically reliable testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment. The physical evaluation must be conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof, related to the use of cannabis. The Commission, in consultation with the Police Training Commission, is to prescribe standards for a Workplace Impairment Recognition Expert (WIRE), who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and for assisting in the investigation of workplace accidents. WIRES will be certified by the Commission.

The September 9th Guidance states that the New Jersey Cannabis Regulatory Commission still is formulating standards for WIRES.  In the meantime, the Commission stated that CREAMMA “does not impede the ability of employers to continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug-free workplace policy.”

The Commission further stated that a scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action. In order to demonstrate physical signs or other evidence of impairment sufficient to support an adverse employment action against an employee for suspected cannabis use or impairment during an employee’s prescribed work hours employers may:

  • Designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. This employee should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report; and, may be a third-party contractor.
  • Utilize a uniform Reasonable Suspicion Observation Report (see sample form provided by the Commission) that documents the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours. The employer should establish a Standard Operating Procedure for completing such a report that includes: (1) the employee’s manager or supervisor or an employee at the manager or supervisor level; and, (2) an interim staff member that has been designated to assist with determining whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.

Although the Commission provided a sample Reasonable Suspicion Observation Report, if employers already utilize a Reasonable Suspicion Observation Report to determine when drug testing is necessary, they may continue to do so.

Additionally, the Commission stated that an employer may use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or an ocular scan, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.

Finally, the Guidance noted that CREAMMA contains certain exceptions for employers subject to federal contracts, as well as drug testing mandated by federal law, rules and regulations.

Employers should review their drug testing policies to ensure that their practices are consistent with the new Guidance.

The U.S. Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA) published a proposed draft Medical Examiner’s Handbook (MEH), including updates to the Medical Advisory Criteria, in the Federal Register on August 16, 2022.  The FMCSA’s regulations provide the basic driver physical qualification standards for commercial motor vehicle (CMV) drivers, in 49 CFR 391.41 through 391.49. DOT Medical Examiners currently make physical qualification determinations on a case-by-case basis and may consider guidance to assist with making those determinations.

FMCSA stated that the goal of the updated MEH and related Medical Advisory Criteria is to provide information about regulatory requirements and guidance for Medical Examiners to consider when making physical qualification determinations in conjunction with established best medical practices. The revised Medical Advisory Criteria, in addition to being included in the MEH, would also be published in Appendix A to 49 CFR part 391. The final version of the criteria would be identical in both publications. FMCSA is proposing to update both the MEH and Medical Advisory Criteria and seeks public comment on these documents until September 30, 2022.  The draft MEH may be viewed here.

Use of CBD with 0.3% THC or Less Is Not Automatically Disqualifying

Under FMCSA regulation 49 CFR 391.41(b)(12)(i), CMV drivers are not permitted to be physically qualified when using Schedule I drugs under any circumstances. The federal Controlled Substances Act lists marijuana, including marijuana extracts containing greater than 0.3% delta-9-tetrahydrocannabinol (THC), as Schedule I drugs and substances. A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational or medical use.

However, under current federal law cannabidiol (CBD) products containing less than 0.3% THC are not considered Schedule I substances; therefore, their use by a CMV driver is not grounds to automatically preclude physical qualification of the driver under §391.41(b)(12)(i).

FMCSA emphasized that the U.S. Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain CBD, so there is no federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.

FMCSA now proposes that each driver should be evaluated on a case-by-case basis and encourages Medical Examiners to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. Medical Examiners may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process, if it is deemed to be helpful in determining whether a driver is using a prohibited substance, such as a CBD product that contains more than 0.3% THC.

This guidance does not impact FMCSA’s drug and alcohol testing regulations.  Use of a CBD product does not excuse a positive marijuana drug test result.

Use of Suboxone and Similar Drugs Is Not Automatically Disqualifying

FMCSA received a large number of inquiries related to Suboxone (a Schedule III drug under federal law, meaning that it has a lower potential for abuse than Schedule I and II drugs).  Treatment with Suboxone and other drugs that contain buprenorphine and naloxone, as well as methadone, are not identified in the FMCSA regulations as precluding medical certification for operating a CMV. FMCSA relies on the Medical Examiner to evaluate and determine whether a driver treated with Suboxone singularly or in combination with other medications should be issued a medical certificate. The Medical Examiner should obtain the opinion of the prescribing licensed medical practitioner who is familiar with the driver’s health history as to whether treatment with Suboxone will or will not adversely affect the driver’s ability to safely operate a CMV. The final medical certification determination, however, rests with the Medical Examiner who is familiar with the duties, responsibilities, and physical and mental demands of CMV driving and non-driving tasks.

Due to the proliferation of state and local laws legalizing marijuana and protecting off-duty use, employers are struggling with whether it makes sense to continue to drug test for marijuana.  Earlier this month I was privileged to record a podcast with the Disability Management Employer Coalition on the topic of “To Test or Not: Employers Question Value of Including Marijuana in Drug Panels.”  In this 30-minute podcast, we discuss the pros and cons of drug testing for marijuana and the legal implications of doing so.  You can listen to the podcast here:

In addition, I wrote a related article that was published in the July/August issue of @work magazine, which you can find here:  Compliance Showcase: Legalized Marijuana in the Workplace – Disability Management Employer Coalition (DMEC).

The Supreme Court of Nevada upheld the dismissal of a lawsuit by an employee who was terminated after testing positive for marijuana on a post-accident drug test.  The Court rejected the employee’s claims that his use of marijuana outside of work hours was “lawful use” under state law.  Ceballos v. NP Palace, LLC, No. 82797 (Nev. Aug. 11, 2022).

The employee worked as a table games dealer at a casino.  After he slipped and fell in the break room, he was required to take a post-accident drug test.  He tested positive for marijuana and his employer terminated his employment.  He subsequently filed suit.

The employee’s first claim alleged that his termination violated the state’s lawful products law.  That law prohibits employers from discharging an employee “because the employee engaged in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.”  The employee argued that he did not use marijuana at work; and because marijuana was decriminalized in Nevada in 2017, his off-duty use was lawful.  The court stated that it had to decide whether off-duty use of marijuana is “lawful” under Nevada state law.

The court held that because marijuana remains illegal under federal law, the employee’s off-duty use of marijuana could not have been “lawful use.”  The court explained that if the legislature intended to protect all off-duty use of marijuana, it could have included the phrase “under state law” in the statute, but it did not.

The employee’s second claim alleged a common law tortious discharge claim based on a public policy violation.  The Court rejected this claim as the case did not fall into the category of “rare and exceptional cases where the employer’s conduct violates strong and compelling public policy.”  Among other things, Nevada’s recreational marijuana law permits employers to adopt and enforce workplace policies prohibiting or restricting the use of marijuana.  If the state legislature had wanted to protect all off-duty use of marijuana, it could have done so.

Rhode Island Governor Dan McKee signed a bill legalizing recreational marijuana in the state on May 25, 2022.  The new law took effect immediately.  Adults age 21 and older now can possess up to an ounce of cannabis, may grow cannabis within their primary residence (up to certain limits) and possess up to 10 ounces of cannabis in addition to live plants. Retail sales may begin as early as December 1, 2022.

The law states that employers are not required to accommodate the use or possession of marijuana, or being under the influence of marijuana, in any workplace or other location where the employee is performing work (including remote work).

Employers are permitted to refuse to hire, terminate, discipline or take other employment action based on an individual’s violation of a workplace drug policy or because the individual was working while under the influence of cannabis. However, employers are generally prohibited from terminating or taking disciplinary action against an employee “solely for an employee’s private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis.”

There are exceptions if off-duty use is prohibited by the terms of a collective bargaining agreement or if the employer is a federal contractor or otherwise subject to a federal law or regulation such that the failure to terminate or discipline the employee would cause the employer to lose a monetary or licensing benefit under the law or regulation.

In addition, if an employee works in a job, occupation or profession that is “hazardous, dangerous or essential to public welfare and safety,” an employer may adopt and implement policies that prohibit the use or consumption of cannabis within the 24-hour period prior to a scheduled work shift or assignment. Examples of work that falls under this exception include: operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses or public transportation, the use of explosives, public safety first responder jobs, and emergency and surgical medical personnel.  [But note that drivers of commercial motor vehicles who are subject to the U.S. Department of Transportation’s drug and alcohol testing regulations never may use marijuana and will be disqualified from driving if they test positive for marijuana].

The law also provides for automatic expungement of certain civil and criminal convictions related to the possession of marijuana.  All eligible records will be expunged by July 1, 2024. Employers may not require an employee to disclose a sealed or expunged offense unless otherwise required by law.

In light of the new protections for off-duty use of marijuana in Rhode Island, affected employers should ensure their drug testing policies and procedures comply with the law.