U.S. DOT Rejects State Laws Re Marijuana Legalization

The U.S. Department of Transportation requires drug testing of certain commercial vehicle operators, and requires employers to ensure drivers who test positive do not drive.
In the November 2012 elections, states such as Washington and Colorado passed laws legalizing recreational use of marijuana.  There also is a growing number of states with medical marijuana laws.
The DOT has now issued a response to these laws, available here.  In essence, the DOT says that state laws do not affect the federal agency's enforcement position:

We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.

Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used “recreational marijuana” when states have passed “recreational marijuana” initiatives.

We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use “medical marijuana” when states have passed “medical marijuana” initiatives.

It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.


We want to assure the traveling public that our transportation system is the safest it can possibly be.

9th Circuit Agrees that Medical Marijuana Users Not Protected by ADA

In 2008, the California Supreme Court held in Ross v. Ragingwire Telecomm. Inc. that the California Fair Employment and Housing Act does not protect current users of medical marijuana.  Post here.  Article here.

The Ninth Circuit just held (2-1) that the federal ADA excludes from coverage current illegal drug users and that "illegal" includes marijuana use that would be lawful in California, but is unlawful under federal law:

We hold that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA, and that the plaintiffs' federally proscribed medical marijuana use therefore brings them within the ADA's illegal drug exclusion. This conclusion is not altered by recent congressional actions allowing the implementation of the District of Columbia's local medical marijuana initiative.

The case is James v. Costa Mesa and the opinion is here.

Medical Pot at Work - It's Back!

The California state senate apparently is taking up another attempt to stop "discrimination" against the stoned at work.  (Yes, there are some exceptions, e.g., they can't be too stoned - impaired - or work at a safety sensitive job). Just read the bill....The text of SB 129 is here.

Like the failed Prop 19, which the voters rejected last year, this bill is too vague and makes it harder for employers to fire people who come to work buzzed than it is to fire people who come to work drunk.  There, I said it.  Unlike Prop. 19, this bill allegedly applies only to "medical marijuana" users, not recreational users.

For the record, I have nothing against pot, medical marijuana, caring cannabis, or wacky weed.  I don't care if pot is legal or illegal.  But I care if people are stoned when making my dinner, caring for my relative in the hospital, fixing my car, or doing my books, etc. The new bill is too solicitous of pot smokers.  Sorry to harsh your mellow.


DGV