A recent conversation was overheard by a couple of firefighters at the station, concerning the new "recreational" use of marijuana laws in states like Colorado, Washington, and has been explored by some legislators in Texas. The conversation concerned whether the legal use of weed would force departments to change thier policies to allow it's use off duty, simular to alcohol off duty. Considering that even the Supreme Ruler of the "Free" World has come out saying that he doesn't see a problem with it.
I can see potiential pitfalls leagally by allowing or prohibiting its use by departments. If a substance is classified as legal by the state, do departments have the right to prohibit it's use off duty? If they allow it's use, and something happens while on duty, what liabilities might the department face.
Naturally, most of us on this forum are not attorneys, and this would be in their area of expertise, but I am wondering if this might be an issue that departments should start exploring before the day we wake up and here is the law. Now what?
I'm no expert on the subject, but doesn't marijuana stay in the system much longer than alcohol? Seems I heard marijuana could be detected up to 30 days after one's last use. When employees are subjected to random testing for such substances that could cause a problem if it were true. Perhaps a threshold could be established like the .08 level (.04 for drivers) we now use for alcohol.
Here's the problem I see with setting parameters. Beer, wine, and liquors all have a known percentage of alcohol by volume, regardless of brand. Body metabolism of alcohol is pretty consistant.
THC percentages in marijuana can vary from plant to plant, variety to variety. Metabolism and exretetion from the body can vary greatly from one person to another. Our alcohol policy addresses that one cannot have had a drink within 12 hrs of reporting for duty. But I'm not sure this could be used with smoking weed.
Colorado has parameters in place concerning driving under the influence which uses a blood test. Anyone with whose test results show five nanograms or more of delta 9-tetrahydrocannabinol, known as THC, per milliliter of whole blood while driving can be arrested for DUI. The test checks for active THC levels, while the urine test only detects the metabolites after it has been broken down by the body.
If a substance is classified as legal by the state, do departments have the right to prohibit it's use off duty?
In short, yes they do, it can be considered a condition of employment. We already see such freedoms and rights subject to condition of employment, from what gets posted on social media and similar policies to smoking bans. In fact I know of a few departments that prohibit smoking and use of tobacco on duty or off duty as a condition of employment, even though tobacco is legal. I know of a few people on such depts that are able to use tobacco because they were grandfathered in due to the change occurring after they were hired.
When it comes to legalized marijuana, again it would be the same condition of employment.
Maybe my choice of "right to prohibit" may not have been the correct phrase. I guess a department would have the right to prohibit almost anything off duty, wearing baseball caps, riding motorcycles, or wearing brown pants, as a condition of employment if they chose too.
There are a couple of local departments in my area which have the no tobacco policy as a COE, but, they do not prohibit alcohol use off duty. This is where the delemma might come for departments. Tobacco is prohibited because it can contribute to health issues, but allowing one to drink intoxicating beaverages, (which can also contribute to health issues) is ok. However, marijuana which doesn't have to be smoked to be used, is also an intoxicating substance, is not allowed. Might there be some challenges here?
I realize this is not going to be an issue that takes the country by storm, but I believe there will be more states jumping on this revenue producing band wagon (it is a money thing), and the powers to be might want to start looking at what if.
Tobacco is prohibited because it can contribute to health issues, but allowing one to drink intoxicating beaverages, (which can also contribute to health issues) is ok. However, marijuana which doesn't have to be smoked to be used, is also an intoxicating substance, is not allowed. Might there be some challenges here?
Not really. If looking at a no smoking policy as a COE, it tends to stem from insurance aspects or moreso due to heart and lung/cancer presumptive laws that may be in place. In such examples, the no smoking clause is because it could be argued that one's heart, lung, or cancer issues were a result of smoking as opposed to exposures on the job. That is how the ones I know of cite the reasoning. Other aspects is the health insurance issues that stem from tobacco use to make it a COE.
Now, while alcohol can contribute to health issues, the key is in moderation. While alcohol in excess can be detrimental to health, there are also studies out there that show health benefits to alcohol in moderation, such as a beer or two a day or glass of wine, etc. Again the key is moderation. Whereas there are no proven health benefits of smoking or tobacco use and likewise no benefits to marijuana. Marijuana for medical purpose is used as a pain or anti-anxiety purpose to mask symptoms one may have, but is not a health benefit.
It is known both alcohol and THC can impair a person's judgement, and physical abilities. So while a dept does not need to tolerate an intoxicated FF, they also don't need to tolerate a high FF either. When it comes to employee and FF safety the same attributes that prevent intoxicated FFs can also apply to marijuana and thus lead to prohibiting as a COE.
So when it comes to departmental purpose for a COE to prohibit marijuana, they can stipulate as they wish. If such legislation is being looked into at the state level and has a chance of passing, then an employer (any employer) can make such COE prior to the law going into effect. In such a case, most fire departments, even in those states that legalized marijuana, already had a drug use policy in place as COE, just because the state legalizes the uses doesn't negate that COE. Now, I would bet there would be some leeway given when it comes to pre-employment screening and that marijuana use may not deter a candidate from the job, however, future drug tests may, if there is such a COE. Essentially it comes down to abiding by the rules of the job. If the job stipulates you wear a uniform as a COE, you do so. If it stipulates conditions for social media, you abide by it. If it stipulates a no tobacco policy, you heed it. Same with marijuana.
An easy way to look at this would be to view things from a military standpoint. Washington state and even Colorado have a significant military presence there with many sailors, soldiers, airmen, Marines, living in the communities that now fall under such state laws. Essentially for those that are citizens or legal residents of the state, they should be protected by those state laws. However, the military has a zero drug policy as a condition of employment, and despite legalized state laws, a military member can and would be discharged if they popped positive on a drug screen for marijuana. Same thing can apply to any fire, police, or any other employer who deems no drug use as a COE.
Here are a couple of links for you that sort of answer that question.
They all basically talk about a current case on appeals in Colorado over medical marijuana but all acknowledge an employers right to discipline an employee for non work related issues... Just ask the guy from Duck Dynasty what can happen to you for talking.
This is the angle (Federal) we would approach it from should it ever come to pass in Texas, (ain't happening).
Our policy is very explicit concerning drug and alcohol use. Since we are a Medicare provider, under the jurisdiction of the DEA for narcotics administration, and federal grant program recipients, we felt that we would be obligated to abide by federal law.
I appreciate the links