‘Shrooms and smoke signals’: Legal drugs in the firehouse
A brief introduction to drug-focused workplace policies – and how to find the statutes that apply to your state
John Rukavina, JD, EFO, CFO, FIFireE, speaks about “Shrooms and Smoke Signals: Legal Drugs in the Firehouse” on July 28 at Fire-Rescue International 2021 in Charlotte, N.C. Register or learn more here.
The legalization of recreational and medicinal marijuana, plus the “consumption explosion” of the hemp derivative cannabidiol (CBD) across the U.S., have brought new complexity to the issue of drugs in the firehouse workplace.
The issue can be particularly confusing for government agencies, as marijuana and active ingredient, tetrahydrocannabinol, are generally illegal under federal law. For example, medicinal marijuana use is not protected as a medical treatment under the federal Americans with Disabilities Act (ADA). Further, state laws vary widely. In some states, marijuana-legalization laws aren’t clear as to whether the job of firefighter is considered a “safety-sensitive position,” ineligible for employee protections. As a result, several states have had to reexamine and amend their recreational and/or medicinal marijuana laws to clarify how they apply in safety-sensitive workplaces.
Where to begin
For fire service leaders, the first step in navigating marijuana regulation is to determine what you state has (or has not) done. Two helpful websites can get you started:
- National Council on Compensation Insurance (NCCI) Marijuana Legalization Update
- DISA Map of Marijuana Legality by State
Find, copy and read your state’s marijuana-legalization law(s). Search your state’s statutes (e.g., “North Carolina statutes”). In my case, the first entry, “North Carolina General Statutes,” is the best place to start a search. Most (if not all) state-statute websites are searchable – you can search the terms “medical marijuana,” “legal marijuana” or similar, to find the statute that regulates recreational or medical marijuana in your area.
You can also check with your state’s organization of municipalities (often called the “league of cities” or “league of municipalities”). In many cases, those organizations have analyzed marijuana-regulation laws and prepared useful summaries of state marijuana laws. The same is true of state bar associations.
General workplace laws and rules
Here’s a summary of some key issues addressed in employer/workplace regulations:
- Federal law preempts inconsistent state laws – Employers with drug testing protocols mandated by federal law (such as Department of Transportation regulations) are likely exempt from inconsistent requirements imposed by state law. That generally doesn’t include firefighters. In some jurisdictions, firefighter/drivers are required by department regulation to obtain commercial driver’s licenses, but since those same firefighters/drivers are not required by federal law to have CDLs, the federal CDL testing protocols don’t apply.
- Employers can regulate possession and use in the workplace – Despite growing state law protections for employees engaging in marijuana use, employers still generally retain the right to maintain a drug free work environment, and prohibit use and consumption in the workplace.
- Employers can regulate workplace safety – Employers still may prohibit employees from showing up to work or performing their jobs while impaired. In addition, in states that do have certain testing requirements, employers are generally still able to conduct marijuana testing of employees in safety sensitive positions. Some states require evidence of impairment in addition to a positive drug test.
- Off-duty recreational use is largely uncovered – Only one state so far (Maine) protects off-duty recreational marijuana use.
- Most states have legalized some form of us – Only three states (Kansas, Iowa and Nebraska) have not legalized either recreational or medical marijuana.
Medical marijuana use – on and off duty
Let’s break down some basics related to medical marijuana.
In most states, employers are free to fire, discipline or take other adverse action against an employee who uses marijuana at work or shows up to work under the influence of marijuana, even if they need it to treat a medical condition. Check your state’s medical marijuana and ADA-type laws.
When it comes to off-duty medical marijuana use, the states are divided. About 20 states prohibit employers from discriminating against medical marijuana cardholders or from firing employees for testing positive for marijuana due to off-duty use. Some of these states also require employers to reasonably accommodate an employee who needs medical marijuana to treat a medical condition, for example, by allowing an employee to start work later in the morning because they use medical marijuana at night to treat glaucoma. Check your state’s medical marijuana and ADA-type laws.
Other states explicitly allow employers to fire employees for off-duty medical marijuana use. And some states don't clearly address the issue, but courts in several of these states have sided with the employer, holding that employers can fire employees for off-duty use of medical marijuana.
In at least one state (New Jersey) workers’ compensation cases that involve prescribed medical marijuana are entitled to reimbursement for medical marijuana expenses.
In Pennsylvania, the state law legalizing medical marijuana does not exclude police officers, but the Pennsylvania Police Training Commission does, so a Pittsburgh police officer who’s on medical marijuana and tested positive will be on administrative leave until “the lawyers get things figured out.”
New Jersey law requires drug tests to include “scientifically reliable objective testing methods and procedures, such as testing blood, urine, or saliva, and a physical evaluation to determine an employee’s state of impairment. New Jersey requires state certification of the individual(s) conducting the test, but regulations establishing certification standards are still being developed.
Virginia’s new law does not “require any defense industrial base sector employer or prospective employer as defined by the U.S. Cybersecurity and Infrastructure Security Agency to hire or retain any applicant or employee who tests positive for [THC] in excess of 50 ng/ml for a urine test, or 10pg/mg for a hair test.” This is the first time that I have seen a state specify a threshold limit for THC (even though it doesn’t apply to firefighters), so I’ll be doing some research. Virginia’s new law is also unclear as to if and how it applies to safety-sensitive positions.
A few worDs about CBD …
There are two types of cannabis sativa – hemp and marijuana. Several years ago, the federal government declared hemp to be legal. One product of hemp – cannabidiol (CBD) – is becoming a common alternative to pain medication. Hemp also contains small concentrations of THC – enough that, depending on the manufacturing process and consumption rate, you can test positive for THC in a workplace drug test.
CBD is not regulated by the U.S. Food and Drug Administration, or anyone else. Consequently, CBD consumers have no assurance that what they’re consuming is what’s described on the label. In 2015, the FDA found that many CBD-labeled products actually contained very little CBD. It sent out a flurry of letters warning companies not to make medical claims. And in 2017, a study published in the Journal of the American Medical Association (JAMA) documented that, in 84 [CBD] products sold online, 26% had less CBD than advertised and 43% had more.
… and about “magic mushrooms”
Psilocybin mushrooms produce the chemical compound psilocybin, a psychedelic drug that is a Schedule 1 controlled substance in the U.S. In 2019, Denver voters endorsed decriminalization of psilocybin (it’s still illegal in the state of Colorado). Late last year, a statewide referendum in Oregon decriminalized possession of psilocybin and legalized it for therapeutic use.
Currently, conventional workplace drug tests do not detect psilocybin, but specialized tests for detection are available. A full dose, roughly 100 to 200 micrograms, is likely to make the user “trip” and interfere with workplace daily functioning. The risk of becoming dependent on psilocybin is low.
Key questions ahead
Now it’s time for your homework assignment:
- Does your state's recreational and/or medical marijuana law deal with “safety-sensitive positions”?
- Is firefighter or EMT or paramedic identified as a safety-sensitive position generally, or in your medical/recreational marijuana law?
- Has your state adopted a state version of the ADA? If yes, does it make any reference to medical marijuana? This is important because state-level ADAs are generally available for protection of employees who are taking medical marijuana under the supervision of a physician. (Remember that the federal ADA does not protect consumption of a federally declared illegal drug like marijuana.)
- Is a positive on-duty drug test enough to discipline or terminate a firefighter, or must there also be other evidence of impairment?
The legalization of recreational or medicinal versions of controlled substances is likely to continue, with psychedelics leading the way. This presents new challenges for fire service leaders. How will expanded legal access to formerly illegal drugs play out in the workplace? We can expect the confused federal-vs.-state approach to continue, which, again, means that the federal ADA will not protect users of drugs still illegal at the federal level, even if the drugs are prescribed by a physician. Further, we can expect the expansion of a new medical specialty – “Medical Review Officer” (MRO). MROs are already practicing in several jurisdictions, applying their expertise in controlled-substance use, abuse and detection. As noted, New Jersey is working on certification standards for drug testing agents – another indicator of what the future holds. Bottom line: A chief fire officer’s job maintaining work environments unaffected by legal and medicinal drug impairment is not going to get easier – so it’s vital to learn the protocols now to stay on top of these issues as they continue to evolve.