The passage of ballot initiatives legalizing marijuana in Colorado and Washington on November 6 has no affect on the U.S. Department of Transportation’s drug and alcohol requirements for covered employers. The prohibition on the use of marijuana by safety-sensitive employees in transportation-related jobs is unchanged.  Employers of DOT-covered employees must test for marijuana in accordance with the DOT’s Drug and Alcohol Testing Regulations.

The DOT’s guidance on this subject, dated October 22, 2009, states clearly:

[M]arijuana remains a drug listed in Schedule I of the Controlled Substances Act.  It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug-testing regulations to use marijuana.

Even physician recommendations for marijuana use under state medical-marijuana laws do not excuse the use of the drug under DOT rules.  See 49 CFR Part 40, at section 40.151 (e).  On “medical marijuana,” the DOT guidance states:

Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.”

The DOT also makes plain that Deputy Attorney General David Ogden’s October 19, 2009, field memorandum to U.S. Attorneys according them leeway in prosecuting federal Controlled Substances Act violations in the face of state medical marijuana laws is inapplicable to the DOT Drug and Alcohol Testing Regulations.  (The memorandum directs that prosecutorial discretion may be exercised on a “case-by-case basis” on “marijuana cases” based on “resource allocation and federal priorities” in states with “medical marijuana” laws.)

Employers in Colorado and Washington may be more likely to face legal challenges for denying employment to job applicants who test positive for marijuana or for taking adverse employment action against an employee who tests positive for marijuana. However, employers (even in Colorado and Washington) probably will be able to retain and enforce their current substance-abuse-prevention policies prohibiting marijuana.  Employers generally have followed federal law in the face of various state “medical marijuana” statutes in the past.