A new article published in the Federal Register in February, which prefaced a digital Drug Testing Advisory Board (DTAB) meeting that was held on March 5. The topic of the article and the meeting covered the Department of Health & Human Services (HHS) drug testing panels and considered adding fentanyl, while also removing MDMA.

Section 8105 from the Fighting Opioid Abuse in Transportation Act (which is included in the SUPPORT for Patients and Communities Act) requires the Secretary to justify whether or not to include fentanyl or other Schedule I or II substances in the Mandatory Guidelines for Federal Workplace Drug Testing Programs.

The focus on fentanyl is driven by the high number of overdose deaths in the U.S., as well as the fact that fentanyl can be used on its own and not paired with heroin or other substances. “According to the National Forensic Laboratory Information System (NFLIS) 2022 report, fentanyl was the third most frequently identified drug and accounted for 13.81% of all drugs reported by forensic laboratories,” the article stated.

According to the proposal, both fentanyl and norfentanyl (a metabolite of fentanyl) would be tested at 1 nanogram per milliliter of blood.

The article also mentioned removing MDA and MDMA from the list of drugs tested in the panel “because the number of positive specimens reported by HHS-certified laboratories does not support testing all specimens for MDA and MDMA in Federal workplace drug testing programs.”

The National Laboratory Certification Program (NLCP) shows that in 2021-2022, the positive rates of MDMA sat between 0.001%-0.003%, with less than 25% of “positive specimens are likely agency blind samples.”

The Substance Abuse and Mental Health Services (SAMHSA), which manages the Center for Substance Abuse Prevention’s (CSAP) DTAB, also considered removing PCP from the drug testing panel. However, decided not to pursue that change. “While PCP has an overall positivity rate nearly as low as MDMA, there are regional differences in positivity, with some areas of the country having much higher rates, so PCP remains a regulated test analyte,” the article stated.

During the March 5 digital meeting, SAMHSA led a public presentation covering “Regulatory Program Updates and Mandatory Guidelines.” The goal of the meeting was to discuss a review of the current Federal Drug Testing Program, as well as the state of the Drug-Free Workplace Program.

The National Laboratory Certification Program (NLCP) also presented an analysis of the cost and benefits of testing for fentanyl and MDMA. The most prevalent substances tested by the NFLIS in 2022 according to most frequently identified drugs in seized drug exhibits, meth was ranked at number one, followed by cocaine at number two, fentanyl at three, cannabis/THC at four, heroin at five. The ranking substance skip slightly to oxycodone at seven, followed by amphetamine at 13, hydrocodone at 15, and finally MDMA at rank 19.

The NLCP also explained that fentanyl testing in urine samples costs $0.23 to $5.00 per specimen for initial testing and $8.00 to $25.00 per specimen for confirmation testing, while oral samples costs $0.80 to $1.00 per specimen for initial testing and $22.00 to $25.00 per specimen for confirmation testing. The total cost estimate to add fentanyl to the drug testing panel could cost anywhere between $ $9,139 to $192,850 per year.

However, removing MDMA from the panel would save an estimated $3,800 and $38,000 per year (based on initial testing between $0.10 to $1.00 per specimen, and confirmation testing between $8.00 to $25.00 per specimen). MDMA is ranked as the 19th most frequently identified drug, the NLCP said the cost was negligible.

The meeting also invited the public to submit comments regarding the proposed changes, with 115 commenters agreeing with the adding fentanyl to the drug panel and 20 agreed with the addition of norfentanyl. Only 3 disagreed with the addition of fentanyl, citing the expense, the fact that it’s a time consuming process, and also the ongoing truck driver shortages.

Many commenters supported removing MDMA and MDA because of the low positivity rate, and how the removal wouldn’t “affect workplace and public safety.” However, many commenters also disagreed with MDMA/MDA removal proposal, claiming that even with a low positivity rate “not testing for it could lead to higher abuse.”

SAMHSA provided a graph that showed the drug specimens reported between January 2013-December 2023. During the 10-year period, confirmed tests for 6-acetylmorphine (referred to as 6-am), PCP, and MDMA, all remained low.

These potential changes are not yet official, as the DTAB is set to review and publish responses to the public comments. After that, a federal review process will proceed, possibly with revisions, and eventually a formal federal register article will announce the finalization of the changes.

Earlier this month, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration released a report that show year-end data from 2023 regarding the annual decrease of truck drivers. Overall, the number of truck drivers has decreased significantly every year since 2020, with the 2023 number sitting at 858,000. More truck drivers tested positive in drug tests in 2023 than ever before, and a high number of drivers refused to be screened in 2023 as well.

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The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) recently released a report sharing new data on U.S. truck drivers. The report consists of a year-end compilation of data from 2023, as well as data specifically from December 2023, published by the Drug and Alcohol Clearinghouse. This includes other data regarding “queries conducted, violations reported, and drivers in the return-to-duty (RTD) process.”

The report shows that there has been an increased number of truck drivers with positive drug tests in 2023, as well as a high number of drivers who refused to be screened. The number of registered truck drivers has dropped every year since 2020, landing at the current number of 858,000 in 2023. Trucker drug violations rose between 2022 and 2023, with 67,775 recorded in 2022, followed by 68,229 in 2023. However, the number of trucker drug tests decreased, with 57,597 in 2022 and 54,464 in 2023. 

The FMCSA wrote that there were fewer trucker screenings overall because they refused to be tested. “We’ve observed that even though the number of positive drug tests dropped for the first time in relation to the previous calendar year, the number of overall drug violations reported to the Clearinghouse continued to increase.”

“The overall rise in drug violations in 2023, even though there are fewer positive tests, is attributed to a nearly 40% increase in reported drug test refusals—9,214 in 2022 versus 12,804 in 2023,” the report stated. “Drug test refusals include employer reported refusals like failing to show up for a random test, or leaving a test collection facility after a test has begun but before it’s complete.”

A more complete breakdown shows that in 2020, there were 44,243 positive drug tests (with 7,092 refusals). This was followed by 48,407 positive drug tests in 2021 (with 7,941 refusals), 57,597 positive drug tests in 2022 (with 9,214 refusals), and finally 54,464 positive drug tests in 2023 (with 12,804 refusals).

Alcohol drug tests are also conducted for truck drivers, although the rate of positive alcohol tests pales in comparison to positive drug tests. In 2020, 697 truck drivers tested positive for alcohol (with 257 refusals), followed by 859 positive tests in 2021 (with 305 refusals), 904 positive alcohol tests in 2022 (with 330 refusals), and finally 1,036 positive alcohol tests in 2023 (with 315 refusals).

Overall, drug tests had decreased over time for all major substances. This includes cannabis (40,916 positive tests in 2022 versus 37,657 in 2023), cocaine (10,953 in 2022 versus 10,326 in 2023), methamphetamine (5,569 in 2022 versus 4,515 in 2023), and amphetamine (5,349 in 2022 versus 4,222 in 2023).

The news outlet Transport Topics discussed the newest data from the report. The article points out that the one thing that hasn’t changed is that drivers who previously tested positive for one of the aforementioned drugs, a majority of them did not return to driving. “Of the 226,598 CDL/CLP [commercial driver’s license/commercial learner’s permit] drivers who tested positive for at least one drug since the Clearinghouse opened in January 2020, 158,330 remain in ‘prohibited driving status,’” Transport Topics wrote. “A total of 68,268 drivers with at least one violation are currently in ‘not-prohibited status,’ and 15,699 drivers have successfully completed follow-up testing.”

American Trucking Associations (ATA) senior vice president of regulatory affairs and safety policy, Dan Horvath, explained that the Clearinghouse system is the leading cause of a decrease in positive drug tests for truckers. “While there could be a few unknown variables that are impacting the decline, I’m cautiously optimistic that the decline in the number of positives is simply because the Clearinghouse is working,” Horvath told Transport Topics. “We are now more than four years into having an active Clearinghouse system, and I’m hopeful that the message is out there that illegal drug use will be detected.”

Horvath also added that this data shows the increase in education for truckers, and knowledge about the consequences of receiving a positive drug test. “Motor carriers have increased the education they provide to drivers to ensure they are aware of the consequences of testing positive. Now, we must ensure that oral fluid testing labs are approved so that carriers can begin using that testing method if they choose,” Horvath said. “ATA has also reiterated the need to correct and finalize the long-overdue hair testing guidelines that have been in Office of Management and Budget review for over a year now.”

American Transportation Research Institute senior vice president, Dan Murray, also provided a comment about the drug test changes seen in 2023 data. “2023 was a really bad year for the trucking industry.” We were technically in a recession,” said Murray. “So I think the number of people entering the industry was considerably smaller than the previous years.”

Murray believes that truckers are leaving the industry before they get drug tested, knowing what will happen. “So I think some people are proactively thinking ‘Well, before I get caught, I’m outta here,’” Murray explained. Additionally, he thinks that another portion of drivers don’t want to risk their jobs. “They say, ‘It’s not worth it to push my luck. If I use, I’m going to get tested. If I get tested I’m going to lose my job. So it’s time to clean up my act.’”

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Draft rules were published on the Federal Register on Aug. 15, which guides medical examiners (MEs) who conduct physical examinations for commercial drivers, and are responsible for certifying drivers for the U.S. Department of Transportation (DOT).

Called the “Qualifications of Drivers: Medical Examiner’s Handbook and Medical Advisory Criteria Proposed Regulatory Guidance,” these draft rules warn MEs of CBD consumption in their patients, and explain that it could still cause some drivers to fail their exams. The Federal Motor Carrier Safety Administration (FMCSA) handbook specifies that drivers may use CBD, because it is federally legal.

The DOT certification lasts for two years, but if drivers use cannabis, they still cannot be qualified, according to the draft’s section called “Use of Scheduled Drugs or Substances.” “A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational, medicinal, or religious use,” the rules state.

In its current form, the draft rules caution MEs that although CBD is legal across the country, the Food and Drug Administration (FDA) doesn’t regulate all of the products, and it can’t be guaranteed that a product’s labels do not incorrectly list the amount of CBD, or the accuracy of THC. “The United States Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain cannabidiol (CBD), so there is no Federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% by dry weight of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.”

More directly, the rules guide MEs on how to conduct the examination with CBD in mind. “The Agency encourages MEs to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. MEs may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process.”

The FMCSA also issued draft rules in 2021 as well, which only briefly mentioned CBD. “The Food and Drug Administration does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. Therefore, drivers that use these products are doing so at their own risk.” There was no mention of CBD in the 2020 draft rules, but it did state that cannabis was not allowed.

In July, DOT sent out a newsletter reminding drivers that cannabis use is prohibited, and the current state of unregulated CBD products that could contain more than the legal limit of THC. “Recently, some states and local governments have passed legislation prohibiting employers from testing for marijuana,” the newsletter states. “[Federal Transit Administration] employers are reminded that state and local legislative initiatives have no bearing on DOT regulated testing programs. Marijuana is still a drug listed in Schedule I of the Controlled Substances Act.”

The newsletter also includes a chart that describes the number of return-to-duty (RTD) drug tests, as well the number of FTA covered employers that are conducting RTD drug tests. One of the potentially telling statistics is the increase in both the number of Return-to-Duty tests conducted and the number of FTA-covered employers performing this type of test,” the newsletter states. “This data indicates a trend toward a ‘second-chance’ policy versus a ‘zero tolerance’/termination policy following a DOT drug violation.” In 2021, there were 892 RTD drug tests, with 236 drug tests by employers who are FTA covered.

In May, Rep. Earl Blumenauer sent a letter to Transportation Secretary Pete Buttigieg, expressing how DOT cannabis restrictions are leading to lost jobs. “The federal government should be making it easier for already-qualified drivers to stay in the profession, not forcing them away. Outmoded and unfair federal drug policies are out of step with reality and directly contribute to the trucking shortage crisis,” Blumenauer wrote. “Too many of the 2.8 million Americans who hold commercial driver licenses are not working because of past cannabis tests and the difficulty they face re-qualifying for duty. Getting these trained, qualified, and capable drivers back on the road will unsnarl supply chains faster and more efficiently. I am very interested in the steps your department is taking to ensure these qualified drivers have opportunities to return to work, regardless of their past cannabis use.”

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The American Trucking Association released a statement in October 2021, citing retiring driving veterans and lower wages as the partial cause for the shortage of more than 80,000 drivers. However, another cause for this shortage is being attributed to adult-use legalization and drivers testing positive for cannabis.

A March 2022 U.S. Department of Transportation summary report states that as of April 1, 2022, 10,276 commercial truck drivers tested positive for THC. (Although this is a significant decrease in numbers, compared to 31,085 violations in 2021 and 29,511 violations in 2020.) Cannabis leads the data as the highest positive drug tests for drivers, but this also includes data about drivers who test positive for cocaine, methamphetamine, oxymorphone and more.

The situation is especially difficult for drivers who consume because many of them travel through multiple states with varying approaches to legalization.

According to an article on Stacker, the Department of Transportation (DOT) Handbook: A Compliance for Guide Truck Drivers confirms that cannabis is still federally illegal. “While states may allow medical use of marijuana, federal laws and policy do not recognize any legitimate medical use of marijuana. Even if a state allows the use of marijuana, DOT regulations treat its use as the same as the use of any other illicit drug.”

The DOT’s Federal Motor Carrier Safety Administration (FMCSA) increased drug testing rates from 25% to 50% two years ago. “The new minimum annual percentage rate for random drug testing will be effective January 1, 2020. This change reflects the increased positive test rate and will result in an estimated $50 to $70 million increase in costs to the industry by requiring that more drivers be tested.” However, it also notes that random alcohol testing remained at 10%.

The FMCSA also states that medical cannabis is also not allowed with any noted exceptions. “Under the Federal Motor Carrier Safety Regulations (FMCSRs), a person is not physically qualified to drive a CMV if he or she uses any Schedule I controlled substance such as marijuana,” it states. “Accordingly, a driver may not use marijuana even if is recommended by a licensed medical practitioner.”

The Centers for Disease Control and Prevention defines five risk factors of being a truck long-haul truck driver, including obesity, smoking, low physical activity, high blood pressure and diabetes. Some of these common workplace conditions have been known to be treated with medical cannabis. In one study from December 2015, medical cannabis helped prevent obesity in mice. Some studies identified how cannabis can actually help treat nicotine addiction. Even a study from this past February showed evidence of how cannabis can help lower blood pressure in those who suffer from hypertension.

An April White House Fact Sheet states that trucking accounts for 72% of products delivered in the U.S., with a plan to assist and help expand trucking job opportunities. “Trucking costs grew more than 20 percent last year as a surge in demand for goods caused by the pandemic confronted a decline in trucking employment that preceded the pandemic,” the Fact Sheet states. “The low supply of drivers is driven by high turnover and low job quality. Turnover in trucking routinely averages 90 percent for some carriers and drivers spend about 40 percent of their workday waiting to load and unload goods—hours that are typically unpaid.”

While the White House’s focus on bettering the work lives of truckers across the country is a step in the right direction, there is a need to alter regulations to allow truckers to use cannabis. One of the efforts includes connecting veterans with trucking jobs, however, with the current state of military veterans seeking access to medical cannabis to treat conditions such as post-traumatic stress disorder, it would create another hurdle for them to overcome.

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