The use of marijuana for medical or recreational use continues to gain legal ground across the U.S., leaving many people in the Aviation Industry wondering how this affects their operation. In a previous blog post, we discussed the confusion surrounding this topic and presented facts concerning marijuana. To provide more clarity, we answer the top 6 questions that aviation companies have:
1. Can a safety-sensitive employee use recreational marijuana, if it is legalized in my state?
The short answer is NO. The U.S. Department of Transportation (DOT) states in its DOT “Recreational Marijuana” Notice: “state initiatives will have no bearing on 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…”
2. What if my safety-sensitive employee has a medical card and smokes marijuana at home?
You may feel you can’t dictate what your employees do off-duty, but it is important to remember that your company is regulated by DOT rules. The DOT “Medical Marijuana” Notice, updated October 2017, states that marijuana still remains a Schedule I drug under the Controlled Substances Act. Thus, it is irrelevant whether your state has legalized cannabis for medical use. The notice also states that “Medical Review Officers (MRO) will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana.’” This means that if your safety-sensitive employee claims that he or she was “prescribed” medical marijuana by his or her physician and that employee elects to use marijuana for medical purposes, he or she will be treated with the same scrutiny and go through the same process as other safety-sensitive employees who utilize illegal drugs.
DOT-covered employees need to be regularly reminded that they are always subject to these rules, regardless of whether they are at work, at home or on vacation. Safety-sensitive or covered employees must always conduct themselves appropriately.
3. How long does marijuana stay in the system?
There are safety-sensitive employees that think they can get away with using marijuana if they know how long it will remain in their system. Depending of different biological factors, marijuana can stay in the system for up to a month. Several cannabis sites point out that many factors play a role, such as: weight, age, exercise, metabolism and body fat content. It is important to remind employees that deciding to ignore DOT regulations and taking a gamble based on time since the last marijuana use is a big risk. They can put their job or career in jeopardy. The time of consumption does not matter, if the MRO confirms a positive test.
4. Will my employee test positive on a drug test, if they use skin products that are marijuana-based?
Multiple sources agree there is always a risk when using topical products containing cannabis. The best way for safety-sensitive employees to avoid an accidental positive drug test is to stay away from any lotions, creams, salves or balms that list marijuana as an ingredient. Marijuana is a Schedule I drug and federal law prohibits its use in any form, including medicinal purposes.
5. If an individual fails the pre-employment drug test for a safety-sensitive role, can I still hire/transfer that individual to a safety-sensitive role?
Only if the individual successfully completes the Return-to-Duty (RTD) process prior to being hired/transferred to a safety-sensitive role, and only if it was the individual’s first offense. If this isn’t the first offense in the individual’s DOT-covered work history, the individual is permanently precluded to perform that safety-sensitive function, per DOT regulations. Another variable to consider is your company’s policy. If your company has a zero-tolerance policy, they may not be eligible for hire in a safety-sensitive role or a non-safety-sensitive role, even if they complete the RTD process.
6. What is the Return-to-Duty (RTD) process?
The RTD process is designed to give good employees a second chance to demonstrate safety and trust with their aircraft operator and the Federal Aviation Administration (FAA). Under 49 CFR part 40, subpart O, there are four steps an individual must successfully complete before returning to a safety-sensitive role.
- Meet face-to-face with a DOT qualified Substance Abuse Professional (SAP) who will recommend education and/or treatment.
- Follow up with the Substance Abuse Professional (SAP) in a face-to-face meeting to determine successful completion of the education and/or treatment. If the SAP determines successful completion, they must issue a written report that recommends the individual be returned to a safety-sensitive role to include follow-up testing requirements.
- Complete a return-to-duty test under direct observation. The results must show a verified negative drug and/or alcohol test result.
- Undergo follow-up drug and/or alcohol testing under direct observation as directed by the SAP.
For more information, please watch the FAA video, Return To Duty Education for DERS.
Please note: there are additional RTD steps for individuals who hold a part 67 medical certificate.