Commentary, Leadership, Legal

Marijuana in the Fire Service: Up in Smoke, Part II

John K. Murphy

Kudos to the firefighters discussing “CBD Oil and Firefighters” in a recent podcast, refreshing the ongoing discussion of medical and recreational use of marijuana and its derivatives in the fire service.

Your firefighters may be using the distillate version of Hemp or Marijuana in managing pain from surgery, cancer treatment and sometimes PTSD. The podcast clearly outlined the new challenges facing the fire service requiring recognition and discussion to manage treatment for certain diseases suffered by your firefighters and the issue of substance abuse policy management for the fire departments.

Part I: Up in Smoke: Medical Marijuana and the Fire Service

Legal Issues – THC and CBD

Both tetrahydrocannabinol (THC) and cannabidiol (CBD) are legal in some places because different jurisdictions have different laws. At the federal level, it is legal to grow industrial hemp if it has less than 0.3% THC. This means that even products extracted from such hemp are legal. High THC strains of hemp (<0.3%), are not yet legal at the federal level. Currently, CBD is categorized as a nutritional supplement because it’s not approved as a drug by the FDA. The FDA has, however, approved a CBD-based drug, Epidiolex for the treatment of seizures in children with drug-resistant strains of epilepsy, such as Dravet syndrome. Notwithstanding all the other details, CBD as a non-psychoactive, is more widely accepted in more jurisdictions than THC. Please check your State laws on the use of these products

Does CBD Oil Have THC?  In the podcast and through simple research, CBD oil usually contains a certain measure of THC. Most CBD oils are typically full-spectrum hemp extracts, and even the industrial hemp that is legal in the United States is allowed to contain up to 0.3% THC. The oil that comes from such a plant will have a certain amount of THC. However if the CBD oil is extracted from marijuana, the level of THC will be much higher, probably up to 12%.

You should be aware that even if you are using CBD oil that has been extracted from low-THC industrial hemp, your product will have trace amounts of THC which may be detectible during a planned or random drug test.  Therefore if you take large amounts of CBD within a short time, you could test positive if you undergo a drug test soon after. Low THC CBD oil is the only legal form of non-medical cannabis in the following states: Alabama, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, New York, North Carolina, South Carolina, Tennessee, Texas, Virginia, Wisconsin, and Wyoming.

Recreational and Medical use States – So far, there are 11 total recreational marijuana states, but 2020 may lead to a few more joining them including New York, New Mexico, Minnesota, and Illinois. As of now, 47 of the 50 states allow for some form of medical marijuana, except for South Dakota, Nebraska, and Idaho, with legislation allowing legal medical cannabis use, though many are very restrictive.

States legalizing recreational marijuana include Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington. It’s important to point out that even in states where marijuana is legal, there are several laws related to how much you’re allowed to carry on you, keep in your house, and transport — obviously, driving while high is a bad idea. But there are important differences: Some states, like Vermont, allow only growing in the home, whereas others, like Washington, do not allow for home-growing of cannabis plants except for special medical personal use. Alabama in 2014 signed “Carly’s Law,” permitting non-psychoactive CBD oil to be provided to children experiencing seizures in clinical studies and is only limited to this special exception.

Several states allow marijuana for use in the following medical conditions inlcuding: Cancer, HIV/AIDS, Hepatitis C, Glaucoma, Multiple sclerosis, ALS, Crohn’s disease, Alzheimer’s disease, PTSD or any condition resulting in wasting syndrome, seizures, severe nausea, severe and chronic pain, or muscle spasms and other chronic or wasting diseases. Several other States with medical marijuana permissions have the same or similar lists of diseases that can be used to treat the pain resulting from these and other pain inducing medical conditions.

Testing for THC – One of the current controversies in the fire service is impairment, substance abuse testing and possibly terminating firefighters within the parameters of your departments “zero tolerance” policies. Departments with these policies are designed to ensure the safety of the firefighters and the community they serve. Contained within these policies is the testing for reasonable suspicion, the protection of employee’s rights, rehabilitation opportunities, last chance agreements and the ramifications of what occurs when you are tested (blood, urine, hair) and test positive for those substances.

Some testing occurs by random testing policies, some are found when ordering an Independent Medical Examination (IME) for performance or return to work issues and some are found as your supervisors or fellow firefighters are concerned that you are coming to work intoxicated or under the influence of some substance. These may include prescription medications to include opioids, non-prescription medications, street drugs, alcohol or marijuana. This is when your department should perform a reasonable suspicion evaluation and have the firefighter tested when the firefighter exhibits impairment guided by your Zero Tolerance/Reasonable Suspicion Policy.

Now the tough question – what if the firefighter shows no impairment but tested positive for marijuana AND the firefighter has a medical marijuana card (AKA Green Card) or has been to those states where recreational marijuana is legal?

Impairment is defined in Merriam Webster and Free dictionary as any disorder in structure or function resulting from anatomical, physiological, or psychological abnormalities that interfere with normal activities; diminished in function or ability or unable to function normally or safely (as when operating a motor vehicle) because of intoxication by alcohol or drugs.

Certainly it is not beyond reason that those imbibing in alcohol or opioids before arriving at their shift could impair performance with visible and outward signs of impairment; but can the same be said for marijuana? This is a rhetorical question as the answer is probably unlikely and the only way to determine impairment is immediate testing at the time of observation. Absolutely, marijuana can cause temporary impairment and it can lower a person’s level of vigilance or focus. However, THC, the principal psychoactive chemical in marijuana, can remain in the body for up to four weeks. But, unlike blood alcohol concentration levels, THC levels do not correspond with impairment levels. The evolving science of testing for marijuana and the lack of consensus over how to measure impairment, is a defining feature of the drug and places the fire service in a difficult position. Unlike the 0.08 blood-alcohol level that’s widely accepted as indicative of drunken or impaired driving, establishing a credible level for THC has been elusive although the accepted standard is 5 nanograms per milliliter of blood.

Marijuana in the Workplace – In a 2018 Washington Post article authored by Jena McGregor entitled Why drug testing at work “is the new don’t ask, don’t tell”, looks at the new workforce testing positive for marijuana and some lawyers say the legalization of marijuana use — 10 states and Washington D.C. allow for recreational use of pot, while 33 states and D.C. have legalized it for medical use, is having a big effect on how employers view employee use of the drug. Most recent laws legalizing marijuana use have been geared towards removing criminal penalties for users, and do not fully address workplace issues posed by medical marijuana.

In most states, employers with “zero tolerance” drug use policies can refuse to hire, or terminate, employees who fail a drug test for marijuana – with or without medical authorization although that standard is changing with some updated laws addressing new hires testing positive for THC.  Marijuana use or possession in the workplace is clear grounds for termination under most department’s policies and currently is classified as a Class I drug, illegal at the federal level.  

With the new millennial workforce, the attitude towards marijuana in this group is generally more positive for use and in a tight labor market, some employers are looking the other way when a positive marijuana drug test is reported. The concerning issue is primarily impairment and would the employer want to turn an otherwise qualified employee away due to a positive test and no impairment?

With low unemployment levels across the country — and the expansion of legalized marijuana at the state level — some businesses are shifting attitudes toward marijuana use when it comes to hiring. In states where it’s legal, employers will tell you, they can’t get good candidates if they test for marijuana in a New York Times article. In Chicago, where Illinois recently passed recreational marijuana legislation, some companies simply forgo drug testing altogether. One company indicated they don’t do drug screenings for two main reasons. “First, the jobs within our organization do not require a pre-employment drug test and second we trust that our team members will make the appropriate decisions in order to be a productive member of our teams while adhering to local laws.”

As marijuana usage becomes more permissible nationwide, workers in general are curious about how the laws apply to their employment. A recent GovDocs survey of HR professionals found that questions about marijuana in the workplace were among the most common they receive.

Although not suggesting the fire service look the other way when faced with a positive test on an entry level and otherwise non-impaired firefighter, the fire service must seriously consider this approach for new firefighter candidates and possibly for non-impaired firefighters  

Reasonable Accommodation under ADA – Another issue facing the fire services and other employers is when an employee with a medical marijuana card (aka Green Card) tests positive and they are denied employment or are terminated from employment. ADA act does not protect illegal drug use, though it does afford some protections for recovering addicts. Marijuana is an illegal drug under federal law, with no exceptions for medicinal use, so its use is not protected under the ADA. To date, this question continues to be discussed under the provisions of the ADA as the firefighter incumbent or candidate may have a legitimate reason for using this form of therapy.

Federal regulations and state laws are in constant conflict over medical marijuana, and the conflict over disability law is no different. While the majority of states have legalized some form of medical marijuana, federal law stands firm in regarding marijuana as an illegal drug, even when it comes to the ADA.

The ADA prohibits disability discrimination and requires reasonable employment accommodations for individuals with disabilities under 42 U.S.C. § 12112(a)-(b) and does not consider individuals who currently use illegal drugs to be qualified disabled individuals entitled to reasonable accommodation noted under 42 U.S.C. § 12114(a). Marijuana is an illegal drug under the federal Controlled Substances Act, 21 U.S.C. § 812(c) and there is no published case law holding that an employee’s use of medical marijuana is subject to the ADA’s protections. A few cases out of the Ninth Circuit held that medical marijuana use is not protected under the ADA, as the ADA does not protect illegal drug use and marijuana remains illegal under federal law.  

State Law

Many states have laws that are similar to the ADA requiring employers to provide reasonable accommodations for qualified workers with disabilities. However, while the ADA does not protect illegal drug use nor medical marijuana use, this is not always the case under state laws.

Employers never have to accommodate on-the-job drug or alcohol use or intoxication, but some state disability laws may provide more protections for illegal drug users than the ADA and other states consider medical marijuana use to be legal. Most state disability laws were written before medical marijuana use became pervasive and do not directly address the subject. In these instances, it has been left to courts to interpret how such laws apply to medical marijuana use.

Pre-employment testing – Starting in 2020, it will be unlawful for employers in Nevada to refuse to hire someone based on the presence of marijuana in pre-employment drug screenings and marijuana is legal in Nevada which became the first in the nation to pass such a law. Maine has a law that prevents companies from discriminating against people who have used marijuana, but the legislation does not address testing.

Exceptions – There are exceptions to the new Nevada law as it does not apply to: Firefighters, Emergency Personnel, Drivers who hold a CDL license (federal law prevails) and workers who, “in the determination of the employer, could adversely affect the safety of others.”

The Nevada bill also differs from the one New York City passed in April 2019. Under the New York City measure, it is unclear what happens when employees test positive after they are hired and the Nevada law goes a small step further: If an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee shall have the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test. The employer shall accept and give appropriate consideration to the results of such a screening test.

Case Law – In 2012, the 9th U.S. Circuit Court of Appeals held in James v. City of Costa Mesa No.10-55769 (May 21, 2012) that although the plaintiffs were “gravely ill,” and California legalized medical marijuana use, the ADA did not protect the plaintiffs’ use of the drug. The court said that the plain language of the ADA only protects drug treatments prescribed by health care professionals when those drugs are not explicitly banned by the federal Controlled Substances Act, like marijuana is.

In Connecticut the law allowing the use of marijuana by qualified patients for medicinal purposes, expressly prohibits employers from taking adverse employment actions because of an individual’s status as a qualified medical marijuana. This statement was tested in court even though Federal law classifies marijuana as an illegal controlled substance and categorically prohibits the use of marijuana for any purpose. For employers in Connecticut with pre-hire drug testing requirements and policies on illegal drug use, this conflict has led to a cloudy haze as to what actions may be taken if a registered medical marijuana user fails an employment-related drug test.  The first case to squarely address this conundrum in Connecticut is Noffsinger v. SSC Niantic Operating Company, LLC, No. 3:16-cv-01938 (August 8, 2017). A federal district court judge found that there is no conflict between federal and Connecticut marijuana regulation and held that federal law does not preempt Connecticut law. Accordingly, a cause of action may be maintained under Connecticut’s medical marijuana law for firing or refusing to hire a user of medical marijuana, even where the individual has failed a drug test.  The case of Noffsinger takes aim at blanket policies by employers that deny or terminate employment for a positive drug test for marijuana. This case may be of particular interest to employers in other states with laws similar to Connecticut, containing anti-discrimination protections for medical marijuana users, namely Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota, and Rhode Island.

Under the Influence – There remains great controversy as to determining if a firefighter is “under the influence”.  As a Washington lawyer and resident I will look to our state laws and the aspect of driving under the influence found in RCW 46.61.502 as an objective standard of impairment.

Remember, Washington State has some fairly liberal laws pertaining to marijuana, however there appears to be a spike in motor vehicle accidents attributed to the relaxation of the laws pertaining to marijuana use.

Under this law, there are a few important provisions to consider such as:(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state:

(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or

(b) The person has, within two hours after driving, a THC concentration of 5.00 (5 nanograms per milliliter of blood), or higher as shown by analysis of the person’s blood made under RCW 46.61.506; or

(c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or

(d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.

4 (b) Analyses of blood samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1)(c) or (d) of this section.

(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.

What does all of this mean for the fire service? Policy is the cornerstone of guiding behavior and having a good policy related to the use of marijuana in all of its forms will help an organization navigate the minefield of the permitted and non-permitted use of marijuana for members of your organization.

Is it time to take a new look at this issue for your State and organization?

Endnotes