Day with DISA 2020 offered attendees a chance to learn more about the ever-changing marijuana laws that vary state-by-state. Hosted by DISA Global Solutions, this virtual drug testing symposium helped employers get expert advice on building a drug testing policy that fits the needs of their workplace while also abiding by state laws. Faye Caldwell, attorney at law and managing partner at Caldwell Everson PLLC, presented “Marijuana: Laws and Strategies” that discussed the recent changes following the 2020 election and how we’re beginning to see a shift towards the legalization of marijuana across the U.S.

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As of November 17, 2020, the FMCSA rules that Washington state’s Meal and Rest Break (MRB) rules are preempted pursuant to 49 U.S.C. § 31141 as applied to passenger-carrying commercial motor vehicle drivers subject to FMCSA's hours of service regulations. This was granted after a petition was filed last year by the Washington Trucking Association (WTA) claiming that Washington’s rules were similar to those of California’s, which the FMCSA determined were preempted under federal HOS rules in 2018.

Current federal HOS rules, which were changed earlier this year, require a 30-minute break after eight hours of driving. Washington’s MRB rules required a 30-minute break after five hours of driving and an additional 10-minute break for every four-hour work period. According to the Washington State Department of Labor & Industries, the MRB rules are outlined as such:

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As the pandemic continues, so do changes to the U.S. Department of Transportation’s (DOT) guidelines and regulations. In March, the DOT issued guidelines on drug and alcohol testing but has since then made adjustments to the Federal Aviation Agency (FAA) guidelines due to the continuously fluctuating workforce and operational disruptions that the pandemic has caused. COVID-19 has made it challenging for employers to meet minimum random drug and alcohol testing requirements under several circumstances. Although they have made more accommodating changes, random drug and alcohol testing is still required.

The FAA announced on November 6th that it would continue to exercise discretion not to take enforcement action against employers that are unable to meet random drug and alcohol testing rate requirements for 2020 due to the COVID-19 pandemic. The FAA had already issued guidance for aviation employers that acknowledged awareness of potential issues that employers could face, such as limited testing facility availability, limited access to collection personnel, etc.

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On Tuesday, November 4, 2020, Oregon became the first state to decriminalize the possession of hard drugs, including heroin, methamphetamine, LSD, and Oxycodone. Individuals will be given the option of paying a $100 fine or attending an established addiction treatment program funded by Oregon’s legalized, regulated marijuana industry. Measure 110 does NOT legalize hard drugs but rather reduces possession to a non-criminal offense.

Although this might help individuals better receive the help they need, it’s vital that employers understand the new law and how it may impact those entering their workforce. Measure 110 is effective 30 days following Tuesday’s ruling, but changes to punishments do not take effect until February 1, 2021. Additionally, addiction recovery centers have an availability deadline of October 1, 2021.

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