Last month, 63-year-old New Hampshire resident Ali Mahfuz made headlines across Massachusetts after he was arrested for reporting to the Chelmsford High School allegedly under the influence of marijuana. Mahfuz, a school bus driver for North Reading Transportation, was scheduled to take the Chelmsford students on a field trip roughly one hour after he finished dropping off students at nearby high school. On his way to Chelmsford, Mahfuz pulled over, and he can be seen on the bus’s video surveillance sleeping, but not smoking, during the stop. However, when students boarded the bus in Chelmsford, they smelled “a strange odor” and alerted a teacher. The teacher summoned the principal, who, with other administrators, determined that the strange odor was marijuana, at which point the administrators removed the students from the bus and called the police. According to police, Mahfuz had glassy eyes, was speaking in a “slow and deliberate” manner, and had a glass pipe and small amount of marijuana in his possession. According to North Reading Transportation, Mahfuz admitted to smoking marijuana between his assignments. Although not reported, it is almost certain that Mahfuz has already lost his job because of this incident.
As the legalization of medical and recreational marijuana has spread – nearly 80 million Americans now have access to some form of legalized marijuana – confusion about the rights of employees who partake has abounded. Days after the 2016 election, which legalized marijuana for recreational use in Massachusetts, I received a call from a school bus driver of nearly 30 years. This person was curious if the new recreational marijuana law meant that they could use when off-duty and still keep their job. In short: No! Regardless of the Commonwealth’s marijuana law, employees can still be fired for their off-duty marijuana use, and worse, this person could risk losing their professional licensure for life. But how can that be, when using marijuana is legal in Massachusetts?
School Bus Drivers are Special
The distinction for school bus drivers, as well as certain other professional drivers, is that they are not only subject to state and local laws, but also a number of federal regulations specific to employees in “safety-sensitive positions.” Safety-sensitive positions include pilots, truck drivers, train engineers, and boat captains, as well as school bus drivers.
At the federal level, employees holding safety-sensitive positions are subject to regulations issued by the United States Department of Transportation (“DOT”) and the Federal Motor Carrier Safety Administration (“FMCSA”). Under these regulations, all employees in safety-sensitive positions are subject to pre-employment, post-accident, reasonable-suspicion, and random drug and alcohol screenings. Employers are required to conduct drug testing in accordance with the regulations, and drivers who test positive are banned from operating safety-sensitive equipment until they complete a DOT-required return-to-work program. Under the regulations, a driver tests positive for marijuana if they have more than 50 nanograms of marijuana metabolites in their blood at the time of hire, or if they have more than 15 nanograms during active employment.
In very limited circumstances, such as drivers who use certain opioid painkillers, the DOT regulations allow a positive drug test to be “verified” as negative, but only if the driver is using the medication for a “legitimate medical explanation.” With the increasing availability of medical marijuana and decreased criminal enforcement at the federal level, many suspected that the DOT would allow a similar exception for safety-sensitive employees who use marijuana with a legitimate medical explanation. However, the DOT issued statements in 2009, 2012, and 2016 stating in no uncertain terms that, even when prescribed under a state law, “it remains unacceptable for any safety-sensitive employee subject to [DOT] drug testing . . .to use marijuana.” This is because marijuana is still classified as a Schedule 1 controlled substance under federal law. Consequently, change, if it ever comes, will have to start with the White House’s Office of National Drug Control Policy, an unlikely proposition under the current administration.
At the state level, Massachusetts school bus drivers and other professional drivers are required to hold a Commercial Driver’s License (“CDL”). In Massachusetts, CDL drivers who are caught driving any vehicle under the influence of drugs or alcohol lose their CDL for one year upon the first offense, and then for life upon the second offense. Drivers can also lose their CDL if they are convicted of any felony related to the manufacturing, distributing, or dispensing of controlled substances, including marijuana. This means that safety-sensitive employees required to hold a CDL are potentially subject to penalties under both state and federal law, even though using marijuana is technically legal in the Commonwealth.
For safety-sensitive employees and CDL drivers the law is clear: use marijuana and you will most likely lose your job, and you could lose your ability to drive professionally for the remainder of your life. As courts across the country, including in Massachusetts, have repeatedly found: employers have the right to maintain and enforce “zero-tolerance” drug policies, because marijuana remains illegal under federal law. (For more on that, check out this blog post) In Massachusetts, this means that an employer can terminate an employee or applicant who tests positive for marijuana, even if the employee is using it pursuant to a valid prescription. Employers should note, however, that a case currently pending before the Supreme Judicial Court could change the state of the law in Massachusetts. A decision in that case is expected this summer