Biden Administration Prefers Fatigued Truck Drivers Carrying Baby Formula to Off-The-Job Marijuana Smokers

Media outlets like High Times and Reason magazines are picking up on something I've been noticing: that the trucker shortage and all the supply chain problems it is causing happened just after the US instituted a National Clearinghouse on drug testing results for drivers, forcing thousands of drivers out of the profession due to off-the-job marijuana use. As the situation is affecting the baby formula supplies, the Biden administration's answer is to exempt drivers from safety requirements over how long they can drive or how much they must rest before getting on the road. 

As Reason reports: 

Beginning in 2020, the Federal Motor Carrier Safety Administration (FMCSA)—part of the Department of Transportation (DOT)—implemented new rules for trucking companies and state regulatory agencies. Beginning in January 2020, the FMCSA increased the rate of random drug and alcohol testing for drivers; all drivers who fail a test are required to be entered into the FMCSA's Drug and Alcohol Clearinghouse, a searchable online database, where their records are retained for at least five years. Additionally, employers are required to check all new hires against the database, as well as annually re-checking every one of their employees. A failed drug test can lead to either a mandatory substance abuse evaluation or termination.

For example, the FMCSA classifies a violation as driving "with alcohol concentration of 0.04 or greater or while using any drug specified in the regulations…other than those prescribed by a licensed medical practitioner." But alcohol is cleared from a person's system within about 12 hours; marijuana, on the other hand, can be detectable days or even weeks after use. Even if somebody used marijuana in a state where it's legal to do so, and allowed plenty of time to make sure they could safely drive, they could still fail a random drug test and be deprived of their livelihood. 

And that's exactly what has happened: According to the FMCSA Clearinghouse's monthly report covering through the end of March, drivers tested positive for marijuana more than 10,000 times just this year. From the beginning of 2020, the number of positive tests is over 70,000. That constitutes 70,000 instances in which a driver was taken off the road, with no distinction between whether they were unsafe to drive or had merely used marijuana recently. 

The American Trucking Associations (ATA) has estimated that the trucking industry is short by 80,000 drivers. 

In response to the baby formula shortage, President Biden has issued an executive order not addressing this situation, but rather "relieving" truck drivers from federal statute 49 CFR § 395.3, limiting maximum driving time for vehicles transporting baby formula or the ingredients needed for production.

That statute from which baby-formula-carrying truckers are now exempted states, in part, that a driver may not drive without first taking 10 consecutive hours off duty, nor after a period of 14 consecutive hours after coming on-duty, and requires a 30-minute break during an 8-hour shift. Other sections ban drivers who have been on duty 60 hours in any period of 7 consecutive days, or have been on duty 70 hours in any period of 8 consecutive days, etc. 

So by erasing these regulations, fatigued drivers are more likely to be on the roadways. Truck driver fatigue is a leading and underreported cause of accidents, including fatalities. A case in point is comedian Tracy Morgan, who was seriously injured in a 2104 accident caused by a fatigued truck driver. John Oliver recently aired a harrowing account of a truck driver ordered by his dispatcher to stay on the road despite reporting he was unsafe to drive due to fatigue. 

Studies show off-the-job marijuana use is unrelated to workplace accidents. A survey of 136,536 Canadian workers found no such association, even in high-risk occupations (Zhang, Carnide, Holness, Cram, “Cannabis use and work-related injuries: a cross-sectional analysis,” Occupational Medicine, Oct 2020). In another study, coal miners testing positive for cannabis in urine had a statistically lower incidence of accidents. (JW Price, “Comparison of random and post-accident drug tests in southern Indiana coal miners,” J Addict Med. 6(4): 253-7, 2012).

Rep. Earl Blumenauer (D-OR) recently sent a letter to Transportation Secretary Pete Buttigieg saying that DOT “should rapidly reform requirements for testing drivers and returning them to service, as well as develop an accurate test for impairment.” He cited DOT data showing that tens of thousands of drivers are being disqualified because of stringent drug screening policies around THC, noting that while nobody wants drivers impaired on the roads, people are being penalized for using cannabis while off duty, days or weeks before they’re tested. 

"Of 119,000 drivers prohibited from driving over the past three years, more than half have not even attempted to return. The Department of Transportation’s current policies towards these drivers contributes to supply chain backlogs and delays in critical deliveries across the American economy," Blumenauer's letter states. 

Technology exists to detect worker or driver impairment. Another option is oral swab testing, which has more relevance to current impairment than do urine or hair tests that detect only inactive metabolites of THC that can linger in the body for days or weeks after use. Two years after SAHMSA issued protocols for oral swab testing, DOT is finally moving to accept it. A pending bill in California would ban job discrimination based on inactive metabolite testing, with exceptions for employees bound by obsolete and dangerous federal law.