One of the current big controversies in the fire service is substance abuse testing and possibly terminating firefighters within the confines of Zero-Tolerance department policies. Departments with substance abuse policies designed to ensure the safety of the firefighters and the community they serve. Contained within these policies(1) 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 you test positive for those substances.
Some of the testing occurs by random testing policies, some are found when implementing an Independent Medical Examination (IME) for performance 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 be prescription medications to include opioids, non-prescription medications, street drugs, alcohol or marijuana. This is when they should perform a reasonable suspicion evaluation and have you tested due to the fact that the firefighter exhibits impairment.
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 marijuana is legal such as Washington or Colorado?
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 for impairment 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 driving, establishing a credible level for THC has been elusive.
In a Washington Post article authored by Jena McGregor in 2018 entitled Why drug testing at work “is the new don’t ask, don’t tell”, (2) 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, and marijuana use or possession in the workplace is clear grounds for termination under most department’s policies.
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?
Although not suggesting the fire service look the other way when faced with a positive test on an otherwise non-impaired firefighter, the fire service must seriously consider this approach for existing and new firefighter candidates.
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. To date, this question continues to be discussed under the provisions of the American’s With Disability Act (ADA), as the firefighter 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. Holding true to this concept, authority out of the Ninth Circuit has 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. (3)
Now, let’s take Connecticut’s law allowing the use of marijuana by qualified patients for medicinal purposes and expressly prohibits employers from taking adverse employment actions because of an individual’s status as a qualified medical marijuana user. 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 smoky haze as to what actions may be taken if a registered medical marijuana user fails an employment-related drug test. (4)
In the first case, to date, that squarely addresses this conundrum is found in Noffsinger v. SSC Niantic Operating Company, LLC, No. 3:16-cv-01938 (August 8, 2017), a Connecticut case. 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. In this case, 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 that, similar to Connecticut, contain express anti-discrimination protections for medical marijuana users, namely Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota, Rhode Island, Colorado and Washington.
What does this mean for the fire service? Our policies are designed to protect the employee, the employer and the community related to safety issues. With the advent of a new labor pool for firefighters, we may unnecessarily deny hundreds of qualified firefighter candidates with the finding of marijuana upon testing but are not impaired. Is it time to take a new look at this issue for your State and organization?
1) Substance Abuse Policy Sample - https://www.fireengineering.com/content/dam/fe/online-articles/docu...
3) See James v. City of Costa Mesa, 700 F.3d 394, 397-98 (9th Cir. 2012).