Non-CDL drivers of CMVs are being denied Medical Cards for marijuana use
posted in Alerts by Brian Gray
Part 390.5 of the FMCSRs defines a CMV as any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle:
- Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 10,001 pounds or more, whichever is greater; or
- Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
- Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
- Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.
What type of company drivers are affected?
Many industries have employees who need qualified non-CDL drivers of CMVs.
The construction industry is a great example because there are many large vehicles, such as dump trucks or concrete mix trucks. In fact, many construction companies need qualified CMV drivers in order to drive a pickup truck that is hauling or pulling a load of stone, gravel, or heavy equipment. The same goes for many landscapers.
Another large group include local delivery, moving companies, transporter of people of 8 to 15 passengers, and distribution companies that are transporting goods in delivery sized trucks instead of larger semi-trucks.
When can this happen?
All CMV drivers are required to pass DOT physicals in order to get their medical cards, and their physicals must be conducted by a Certified Medical Examiner (CME). Since drivers who operate CMVs that do not require CDLs are not subject to DOT drug testing, some employers believe it is legal for these employees to use marijuana in states that allow it.
However, Part 391 of the FMCSRs state that the use of Schedule 1 drugs by a driver is an automatic disqualification from operating a CMV. There are two ways that a CME can disqualify a driver for using Schedule 1 drugs:
The first way is when a driver admits use on the “federal” form s/he fills out before the physical. The form the driver fills out for the medical examiner asks two questions about illegal substances.
- Have you used an illegal substance within the past two years?
- Have you ever failed a drug test or been dependent on an illegal substance?
The first question is referring to any federal Schedule 1 drug, including marijuana. If the driver marks “Yes” to the first questions, they are automatically disqualified and will not receive the required medical card.
If the driver marks “Yes” to the second questions (which is referring to failure of a Schedule 1 drug), the diver is not automatically disqualified, however, some medical examiners may want the driver to take a non-federal drug test.
In the second scenario, if the medical examiner notices symptoms of potential drug use, they can request a drug test before passing the physical. This type of request is similar to any other type of request a CME may make before issuing a medical card, such as a sleep study for sleep apnea.
Both scenarios have come up in our own clinics. For example, we had a driver come in last December for a DOT physical who had extreme weight loss in a short time-frame, and other characteristics of drug use. Our medical examiner wanted the driver to take a drug test, which had non-negative results. As such, the driver did not qualify for a medical card to drive a CMV.
What happens if a non-CDL driver fails a drug test ordered by a CME?
Employers and drivers should understand that a CME cannot order a drug test to be done under the authority of the DOT. As such, drivers who test positive during these tests are not subject to any DOT drug testing requirements.
Failing a drug test ordered by a CME automatically disqualifies the driver from obtaining a medical card, and thus, prohibits the driver from operating a CMV. However, failing a drug test under the authority of the DOT, the driver does not have to see a Substance Abuse Professional (SAP) or be a part of a follow-up program, unless individual company policy requires them to do so. It is important to note, however, that if the driver has a CDL and is operating a CMV that requires a CDL, you as the employer have “actual knowledge” of drug use and will need to perform a DOT reasonable suspicion drug test on the driver.
Also, drivers who fail non-DOT drug tests will not have their information in the upcoming DOT Clearinghouse as this database holds only positive tests or refusals of DOT drug tests. It is important to note that if any of these CMV drivers want to get their Commercial Driver’s License in order to be a CDL driver of a CMV, none of the previous non-DOT drug tests will be added in the DOT Clearinghouse database.
If the driver who failed the drug test wanted to get a medical card in the future, they would have to fill out the federal form again and answer the two illegal substance questions again.
If the driver lies on the form and is caught in a DOT investigation, maybe being caught trying to “doctor shop” in order to find a medical examiner to give them a medical card, the form they are filling out states submission of fraudulent or intentionally false information may be subject to civil or criminal penalties under 49 CFR 390.37 and 49CFR 386.
Based on the federal form, the driver may have to wait two years in order to get their medical card, otherwise be subject to the penalties.
Why should employers care and what should they do?
Remember that driver we mentioned that came in for a DOT physical, was told to submit to a non-DOT drug test, and failed? The employer was upset because they just lost a good driver for this company. Since the driver could not drive, they had to figure out how to keep the vehicles on the road.
This company had a drug testing policy that included drug testing non-DOT employees. However, they removed marijuana from their drug test panel because the drug is legal in the state of Oregon. In this case, the company was unaware that drivers cannot obtain DOT medical cards if they use marijuana.
In order to prevent this scenario from happening at other companies, we recommend making sure all drivers of CMVs be a part of a drug test program that includes testing for marijuana.
For more information on how to set this program up or updating your company drug testing policy, call CleanFleet today at 503-479-6082.
***Tim Thoelecke*** says: posted on 14 Feb, 2019
I have a question about your statement: ” It is important to note, however, that if the driver has a CDL and is operating a CMV that requires a CDL, you as the employer have “actual knowledge” of drug use and will need to perform a DOT reasonable suspicion drug test on the driver.” I was looking into this for a client, and found this: https://www.fmcsa.dot.gov/faq/self-admission-driver-admits-company-official-they-have-used-controlled-substance
If I read that correctly, “actual knowledge” is no different than a positive test. Am I reading it wrong? Your thoughts appreciated.
***Brian Gray*** says: posted on 25 Feb, 2019
Thank you for your question!
Reasonable suspicion, actual knowledge and self admission are functionally different.
Reasonable suspicion is a process of observed changes of behavior, smell and appearance. It has a DOT remedy (reasonable suspicion test), meant to eliminate substance abuse as the cause for documented changes.
Actual knowledge is defined here ( https://www.fmcsa.dot.gov/faq/actual-knowledge-what-%E2%80%9Cactual-knowledge%E2%80%9D-used-part-382-subpart-b ), includes observation, information from a previous employer, or from a citation in a CMV.
There is not a clearly defined remedy, as each instance could have different actions. If you have observed evidence, this would be enough to remove someone from safety sensitive functions, and could be used in concert with the information obtained from the reasonable suspicion process.
Info from a previous employer could also be sufficient to remove a driver from safety sensitive functions, but it would be more important in seeing if the employee obtained a treatment program and completed it to the satisfaction of a SAP, as well as DOT require follow up testing.
A citation in a CMV has a more clear remedy, because they must be removed from safety sensitive functions and meet a SAP.
Self admission could come up in any of these scenarios. If an employee admits to substance abuse as part of the reasonable suspicion process (confrontation), the process would continue and the admission documented. If an employee admits to substance abuse after actual knowledge, there isn’t a clear DOT remedy, but removing from safety sensitive functions would likely be the best option, and would give the employer the ability to provide support for treatment. Terminating the employee would likely also be justified. If an employee admits use without any prompting, removing from safety sensitive function would be necessary, but company policy would have to guide the employer on consequences.
***Kurtis*** says: posted on 17 Mar, 2019
I have a question. I have a 16k lb utility bucket truck. I do not even drive on any interstate or across state lines. I work for a phone company in 3 towns right by each other. Do I have to have a Dot physical and medical card?
***Brian Gray*** says: posted on 19 Mar, 2019
Thank you for your questions. Even though your vehicle is over 10k pounds, you are NOT driving interstate and do not need a DOT medical card and physical.
Part 390.5 of the FMCSRs defines a CMV as any self-propelled or towed motor vehicle used on a highway in “interstate commerce” to transport passengers or property when the vehicle:
• Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 10,001 pounds or more, whichever is greater;
***Christopher Stupcenski*** says: posted on 30 Oct, 2019
I have a question .i was a cdl holder an driving a non cdl rollback an failed a dot random urine test. Im told i have to do sap program .i gave up my cdl an went back to reg license .can i drive a non cdl box truck with out goin thru sap program.
***Brian Gray*** says: posted on 04 Nov, 2019
This is a good question for the FMCSA as there is a little loop hole here. The non-CDL Box Truck probably still requires the driver to have a Med Card. To receive/renew your medical card, the form asks a question “Have you used an illegal substance within the past two years?” — Technically the medical card could be revoked with a failed DOT drug test, but almost never is, so no one is stopping you from driving the non-cdl box truck.