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Home > Topics > EMS Management
December 13, 2012
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The Legal Guardian
by David Givot

New marijuana laws: Why medics should just say no

What happens if EMS providers who use marijuana safely and legally, but test positive days later in violation of policies?

By David Givot

Last month, voters in two states — Colorado and Washington — passed laws making the recreational use of marijuana legal.

While I am rather surprised, I am not disappointed. I have long advocated the legalization of marijuana — not because I do or would use it, but because I believe that the tax and reduced crime benefits outweigh the societal risks.

I don't believe that legalization will result in a marked, much less substantial, increase in use by those who would otherwise not use it regardless of its status. Likewise, I don't believe that legalization will result in a marked, much less substantial, increase in cases of impaired driving; the high drivers are already out there and it's still a crime.

There is, however, one concern that has yet to be addressed: EMS providers who use marijuana safely and legally, but test positive days or even weeks later in violation of department or agency policies.

On this question, the law is extremely complicated and every nuance in facts makes it even more so. However, the general principles can be simplified.

Generally, an employer cannot prevent or prohibit an employee from engaging in legal conduct while off-duty and away from work.

Going to Vegas
For example, an employee, off-duty, not representing the employer in any official capacity, and over the age of 21, can go to Vegas, drink alcohol and gamble in a casino without fear of reprisal by the employer.

Likewise, the employee could visit a duly licensed and authorized brothel and privately take advantage of the various services provided without such fear.

Back at work, however, every EMS agency in America has (or should have) a zero-tolerance policy for the use of alcohol while on duty. That is, inasmuch as alcohol leaves the body at a rate of roughly six hours an ounce; theoretically, an employee who stops drinking at 11PM should be alcohol-free and ready to work at 7 the next morning. 

Thus, any employee who tests positive for the presence of alcohol on duty should face immediate and severe sanctions. 

Linear logic dictates that the same should be true of an employee who, off-duty and not representing the employer, uses marijuana in a jurisdiction where doing so is legal and is done in compliance with the governing laws and regulations. Not so fast.

Most if not all EMS agencies have a zero-tolerance policy for marijuana use and most employees are subject to causal and/or random drug testing. Unlike alcohol, although the effects of marijuana are relatively short-lived, the drug remains present in the body for weeks.

So, can the employer still fire an employee for having trace amounts of marijuana in his or her system, even where the marijuana was used legally?

No…and Yes. The Tenth Amendment to the Constitution of the United States provides that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Therefore, if the State deems the use of marijuana legal, then the legal use of marijuana applies to the associated labor laws of that state. Ergo, if State labor laws prohibit the termination of an employee for engaging in legal conduct, the employee cannot therefore be terminated for engaging in legal conduct. Simple enough.

Supremacy Clause
However, there is the pesky "Supremacy Clause."  Simply put, Article VI, paragraph 2 of the United States Constitution says that, in ALL cases, Federal Law supersedes State Law. Under Federal Law, marijuana remains illegal.

Therefore, according to Federal Labor Law, policies prohibiting the use of marijuana are likewise lawful and a termination based thereupon is proper.

So, what's the answer?

The Washington and Colorado laws are brand new and none of these questions have been tested in Court under them. It will be interesting to see how my analysis comports with inevitable Court rulings.

In the meantime, the only prudent and intelligent answer is: Just say no. There is nothing so wonderful about marijuana that makes it worth losing and/or having to wage an expensive and lengthy fight to protect your job in EMS.

Not to mention, an EMS provider getting high is about as counterintuitive as a cardiologist smoking cigarettes or an airline pilot who is afraid of heights.

About the author

David Givot, Esq., graduated from the UCLA Center for Prehospital Care (formerly DFH) in June 1989 and spent most of the next decade working as a Paramedic responding to 911 in Glendale, CA, with the (then BLS only) fire department. By the end of 1998, he was traveling around the country working with distressed EMS agencies teaching improved field provider performance through better communication and leadership practices. David then moved into the position of director of operations for the largest ambulance provider in the Maryland. Now, back in Los Angeles, he has earned his law degree and is a practicing Defense Attorney still looking to the future of EMS. In addition to defending EMS Providers, both on the job and off, he has created TheLegalGuardian.com as a vital step toward improving the state of EMS through information and education designed to protect EMS professionals - and agencies - nationwide. David can be contacted via e-mail at david.givot@ems1.com.
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