September 2, 2020

Safety Carve-Outs: A Critical Tool when Marijuana Laws Change

By Christine

For years, employers have been struggling with changing local and state marijuana laws and the impact on workplace drug screening programs.

At least 33 states now allow medical use of marijuana and 11, plus Washington, D.C., also permit recreational use. Recently, we have seen a rise in the direct repercussions of legalization on drug testing. In January, a Nevada law took effect barring employers from considering a pre-employment marijuana test result. In May, New York City prohibited employers from conducting pre-employment marijuana testing all together.

While marijuana use is still illegal under federal law, NDASA members often hear questions from confused employers. If marijuana is legal in my state, am I allowed to require marijuana testing? Can I remove an employee from the job if they test positive for marijuana?

When it comes to businesses regulated by federal programs including the Department of Transportation’s (DOT) drug and alcohol testing program, outlined in 49 CFR Part 40. We can unequivocally answer “Yes…For now.”

So far, thanks to advocacy efforts by NDASA and others, changing state laws have included Safety Carve-Outs – or exceptions – for safety-sensitive positions and those regulated by federal programs. This means we can continue to ensure that our airline pilots and air traffic controllers, school bus drivers, long-haul truck drivers, railroad operators, pipeline workers, hazardous materials transporters, public transit operators, mariners and others are not using marijuana as they serve the public.   

The MORE Act

But this could soon change.

Later this year, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, will likely come up for a vote in Congress. The MORE Act decriminalizes marijuana nationally by removing it from the list of scheduled substances under the Federal Controlled Substances Act.

What could this mean for drug and alcohol screening under 49 CFR Part 40?

If the MORE Act becomes law, the Department of Health and Human Services (HHS), the governing body that regulates what substances can be tested for, will be forced to remove marijuana as a Schedule I Controlled Substance from its drug testing panel.

DOT, which currently requires testing for marijuana, cocaine, PCP, amphetamines and opioids, is mandated to follow HHS guidelines for drug testing. So, if HHS is no longer allowed to test for marijuana, DOT must also remove the drug from its panel, effectively creating a situation where DOT-regulated employees such as school bus drivers and truckers can legally be high on the job. The potential impacts on public safety and costs to U.S. employers are alarming. Keep in mind, according to the National Safety Council, marijuana users have 85 percent more work injuries and 55 percent more industrial accidents compared to non-users and substance use already costs U.S. businesses about $285 billion every year.  

Our Recourse? The Safety Carve-Out

By urging lawmakers to add a Safety Carve-Out to the MORE Act that would maintain HHS and DOT drug testing measures, these unintended negative consequences of marijuana decriminalization can be mitigated.

This is where our organization comes in. With decades of experience in governmental advocacy, NDASA is committed to making a difference on behalf of the drug and alcohol screening industry, its clients and business partners. By working with federal agencies and the legislature NDASA strives to raise awareness about the critical need for workplace marijuana testing, especially in safety-sensitive situations. We provide expert testimony, documentation, suggested Safety Carve-Out language and information. Our members help to support the cause by making their voices heard and contacting lawmakers directly.

Together, we ensure that changing local, state and federal marijuana laws continue to include Safety Carve-Outs, maintain testing and protect workers, employers and the public.  To learn more about NDASA’s government advocacy work or how to support Safety Carve-Outs, contact

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