October 23, 2020

Understanding the MORE Act and the importance of a Safety Carve-Out


The Procedures for Transportation Workplace Drug and Alcohol Testing Program outlined in 49 CFR Part 40 applies to transportation safety-sensitive employees who have a direct impact on the safety of commercial transportation for both the traveling public and those around them. Thus, transportation safety-sensitive employees must be free from the use and presence of marijuana, opioids, cocaine, amphetamine/methamphetamine and PCP.

These testing procedures cover safety-sensitive employees defined by the FAA, FMCSA, FRA, FTA, and PHMSA which include, among others:

  • Airline Pilots & Air Traffic Controllers
  • School Bus Drivers
  • Long Haul Truck Drivers
  • Railroad Operators
  • Pipeline Workers
  • Hazardous Materials Transporters
  • Public Transit Operators
  • Mariners


The Omnibus Transportation Employees Testing Act of 1991 states, “with respect to laboratories and testing procedures for controlled substances, [the DOT must] incorporate the Department of Health and Human Services scientific and technical guidelines.” It further states that HHS will “establish the minimum list of controlled substances for which individuals may be tested.”

Executive Order 12564 — Drug-free Federal workplace of Sept. 15, 1986, Section 7(c) states, “For purposes of this Order, the term “illegal drugs” means a controlled substance included in Schedule I or II, as defined by section 802(6) of Title 21 of the United States Code, the possession of which is unlawful under chapter 13 of that Title.” (Emphasis added.) 21 USC Chapter 13 describes unlawful: “The term “felony” means any Federal or State offense classified by applicable Federal or State law as a felony.”

The HHS Federal Register / Vol. 73, no. 228, p.71880, Section 3.2(a) states that an employee may be tested for “any drugs listed in Schedule I or II of the Controlled Substances Act (other than the drugs listed in Section 3.1, or when used pursuant to a valid prescription or when used as otherwise authorized by law).” (Emphasis added)


Should states be authorized by law to deem marijuana as lawful, or if any of the drugs in the federal testing panel become rescheduled below Schedule II, the direct result is that HHS and DOT WILL NOT BE ALLOWED to test for that substance.


  1. There must be an immediate Safety Carve-Out for safety-sensitive employees regulated by the U.S. Department of Transportation and for federal employees subject to testing. Federal employee testing must continue under a safety carve-out, or HHS will no longer certify and inspect laboratories for the testing of the drug that has fallen below Schedule II.
  2. It would be prudent to mandate a Safety Carve-Out for all safety-sensitive employees whether D.O.T. or non-D.O.T. so that employers have the continued right to a safe and drug-free workplace where employees, workplaces and the general public could be at risk from those operating while under-the-influence of THC.


Our network of subject matter experts in the field of workplace drug and alcohol testing are available to offer expert testimony, education and recommendations. This includes: Medical Review Officers, Drug Collections Professionals, Substance Abuse Professionals, etc.