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New marijuana laws: Why medics should just say no

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EMS Management Article

December 13, 2012


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.

Comments
The comments below are member-generated and do not necessarily reflect the opinions of EMS1.com or its staff. If you cannot see comments, try disabling privacy and ad blocking plugins in your browser. All comments must comply with our Member Commenting Policy.
Alexander Blake Alexander Blake Thursday, December 13, 2012 6:15:54 PM "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." Why? I don't think you would say this about medics that like to have a beer after a long shift.. Why is marijuana any different? Marijuana has less side effects, and is not harmful in any meaningful way. I wish all alcoholic patients replaced the bottle with a joint, it would make for a much more pleasant experience, would it not? "Just say no" is condescending. We're adults here, not children.
Teresa Sluss Teresa Sluss Friday, December 14, 2012 2:46:22 PM I agree totally with the author of this, JUST SAY NO. Why would you want to be mental altered when you , yourself is to uphold the true meaning of taking care of our patients with destinction and honor. We already get a bad rep sometimes, why make it even easier for them to put more on our table then there already is. Sure we are not children, but even my children know it is wrong, like most public children. Marijuana, does effect your reflexes, slows them down, also alters your thinking , so it is a loaded gun in an emergency situation don't ya think.
Alexander Blake Alexander Blake Friday, December 14, 2012 2:53:19 PM Yeah, just say no to alcohol, too.
David J. Givot, Attorney at Law David J. Givot, Attorney at Law Friday, December 14, 2012 4:55:31 PM I think you may have misinterpreted the underlying message. “Just Say No” was a wink to Nancy Reagan’s campaign against drugs from the 1980’s. I agree; there’s nothing like a nice cold beer – or two – after a tough day. The point I was trying to make is that until the use of marijuana is not grounds for termination of employment, it is safer to just not do it. Likewise, until the specifics of the law are worked out in court, it’s safer not to use it. Personally, I don’t really see that marijuana is any better or worse than alcohol. At the same time, I don’t see marijuana as being worth losing the best job in the world.
Ryan Yuhr Ryan Yuhr Friday, December 14, 2012 6:34:36 PM No one is advocating Cannabis use during duty hours. It's on my Off duty time that I would like to decompress with a good book and glass of iced tea and a nice spliff.
Gary Madison Gary Madison Friday, December 14, 2012 8:53:39 PM So how do you know if a person testing positive is high now or 2 weeks ago? The employe has to play it safe and take for granted you are still under the influence when the drug test is administered. Why do you need something to "feel good" is there something fundamentally wrong with you that you must take something to feel good.
Michael H. Reynolds Michael H. Reynolds Saturday, December 15, 2012 8:06:45 AM For alcohol, lab numbers exist that describe the level of blood alcohol below which one is no longer considered legally impaired. I have not seen those numbers for THC blood levels. Until those numbers are produced, and accepted by the same state governments that describe the legal limits for blood alcohol levels, those desiring to use cannabis should play it safe "just say no". Because THC and the other associated cannabinoids, and cannabidiols are fat soluble, they take much longer to be passed by the body; thus their numbers will remain high, even when the user is not high, for a significantly longer time than water soluble alcohol.
Paul Bucca Paul Bucca Saturday, December 15, 2012 2:55:25 PM Why should marijuana presence in your system be any different from alcohol presence in your system when going on an EMS call? We are tested for alcohol and drugs and have a zero tolerance policy for both. The problem that the marijuana user faces is that it remains in the system much longer than for alcohol as articulated by the author and reinforced by Michael Reynolds. Hence this population has to educate themselves as to how long marijuana will remain in their systems and this consideration may well preclude its use. The zero tolerance policy does not stipulate that you refrain from ingestion of legal substances, it only requires that the substance not be in the employee's system in the work place-we should demand no less. Paul Bucca, EMT - rural Idaho.
Alexander Blake Alexander Blake Saturday, December 15, 2012 3:18:07 PM How many times do you think EMS responds to a fight that broke out because a husband smoke a bunch of weed and hit his wife? Never. How many times do you see people that killed someone because they got high on weed? None. Domestic violence almost always involves alcohol, not marijuana.
Alexander Blake Alexander Blake Saturday, December 15, 2012 3:18:50 PM Anyone that enjoys coffee has something fundamentally wrong with them!
Dirk Myers Dirk Myers Saturday, December 15, 2012 6:54:10 PM I agree Paul, particularly as it pertains to EMS and Fire personnel. And though I've never been much of a pot smoker and its been 30 years since I did last, I do get the point of those that do regarding. traces staying in the system long after the "high" is gone. As an employer in the state of WA its going to be interesting from a HR perspective.
Dallas Bond Dallas Bond Sunday, December 16, 2012 6:59:40 PM Paul, marijuana remains measurable in a person's system for up to 90 days after cessation of use. I worked in chemical dependency treatment many years ago. The way we checked to make sure our cannibis users had not relapsed was to do serial level checks on them. As long as they showed a steady decline in levels they were assumed to be clean. A positive THC test is not indicative of use within an identifiable time frame. I agree with zero tolerance but we also have to respect an individuals right to partake in a legal activity where it is allowed.
James A. Baleno James A. Baleno Sunday, December 16, 2012 8:21:02 PM I've long held that legalization of marijuana would do more good than harm in the long run. That being said, I don't partake of it, and haven't in many years. Now, I've spent most of my adult life working in Healthcare, from EMS to MD office, lab and hospital. I've done my research, and when I did partake in the past, it was always at a time or place where it would not affect my work. If I was going to be on call, no partaking allowed, etc. The thing is, while smoking marijuana is not quite as bad for you as cigarettes (and all the chemicals they add to them) it still has some damaging effects in that particular consumption. The safest form of consumption is eating it. The thing is, and the info is out there for anyone who actually cares enough about the truth to find it, that THC is a short acting compound whose chemical residue lingers in the adipose tissues without having further effect on the brain. It is then released over time via the blood stream to the kidneys and out in the urine. Surprisingly, it does not damage the kidneys while being filtered out. Alcohol by comparison.... well, just visit the detox unit of your local hospital. DT's, liver failure, loss of fine motor skills and cognitive ability, etc. The sad part is that the medical community at large knows that Marijuana does significantly less damage to the body over time than alcohol, but no one likes admitting it. The biggest problem with responders and drug testing in states where it is legal, is that you can not conclusively prove that they are 'under the influence' at that time. It takes up to 7 days from consumption to show in urine testing, 2-3 days for blood and mouth swabs are still the least reliable technique. Unlike alcohol (breathalyzer anyone?) which is easily determined. I know, kind of rambling, but I'm not usually the type to jump into these conversations, so I apologize for my lack of polish on this comment, but the substance is still there.
????? ?????? ????? ?????? Monday, December 17, 2012 8:34:49 PM Alexander Blake you said it, we read all day news papers, and watching news, never heard a story that someone killed because of using Weed, but we all heard stories killed or met with an accident by Alcohol, better ban Alcohol not Weed, make it Legal Marijuana (y)
Elizabeth Miller Elizabeth Miller Wednesday, December 19, 2012 12:31:14 PM The question isn't "should it be legal", but "how does EMS, with its zero-tolerance policy, accomodate the testing complications inherent with its use?". The author here is just reccommending against being the test case.
David Givot David Givot Wednesday, December 19, 2012 1:02:25 PM You are missing the point.
David Givot David Givot Wednesday, December 19, 2012 1:03:13 PM Thank you, Elizabeth. That is exactly what I am saying.
Jake Stein Jake Stein Wednesday, December 19, 2012 4:15:10 PM EMS agencies receive money from Federal insurances, grants and whatever. Marijuana is still illegal at the Federal level. If EMS agencies want to comply with Federal laws to continue to be reimbursed or have funding through some grants, they must adhere to Federal laws. Until the states legally take their stance and challenge this in the Federal courts, they should refrain from putting new laws on the books which are in a deep conflict at the Federal level. Lessons should have been learned from the California experience with Medical Marijuana. Gay marriage is also an example. Being married in one state does not automatically mean you are eligible for all benefits in all states or from the Federal government.
Jake Stein Jake Stein Wednesday, December 19, 2012 4:23:06 PM Another issue is smoking in general. Employers have the right to determine what unhealthy life styles they do not want accept from their employees. Many industries, including hospitals and a few county EMS agencies, have decided they would no longer hire employees who smoke cigarettes. Others have also decided to no hire people who are obese with high BMI. Only in a few areas like San Francisco is obesity protected. Smoking is not a protected right. You can not say it is your right to smoke is the same as your right to be black. As far as alcohol, some EMS and FDs even allow it to be in their stations. Others prefer you refrain from drinking at least 8 hours before your shift. Unfortunately EMS often fails to police itself and allows impaired EMTs and Paramedics to get behind the wheel of an ambulance or perform patient care. So, I do see a problem with marijuana when we fail to police ourselves as we have already demonstrated we are incapable of doing in many other areas.
Jake Stein Jake Stein Wednesday, December 19, 2012 7:51:19 PM Dallas Bond If it is illegal at the Federal level, how do you expect EMS agencies to survive without reimbursement? If a company is knowingly violating Federal laws, they can be denied any funding and reimbursement. Take note of the lessons companies have learned in California with "legalized" medical marijuana.
Jake Stein Jake Stein Friday, December 21, 2012 9:52:54 AM Most here are incorrect because they do not do a tox screen at scene to know what drugs are in the offending person's system. If the husband is brought to the hospital for whatever reason for a tox screen, drugs such as MJ might be found. If the police tossed the guy's house, drugs might be found. Most will take just the obvious and call it a day without doing the extra paperwork and labor. When a person has a drug problem of any type it causes problems in a marriage. If the husband sits around the house stoned all day while the wife is forced to pay the expenses and take care of the kids that is as abusive as if he beat her brains out. It all takes a toll.
Jake Stein Jake Stein Monday, December 24, 2012 3:09:19 PM Those who know very little about substance abuse use the alcohol vs marijuana argument. Beer metabolizes rather quickly through the system and many agencies can feel comfortable with the 8 hours from bottle to throttle policy where there will be no detectable signs of alcohol in the system. Marijuana can be detected several days afterwards in the system and if you are a regular smoker, who knows how long your buzz will last. If the Federal government says marijuana is illegal, see how long your agency will stay in business without receiving payments from Medicare or any type of additional Federal funding for major emergencies. Also, why should EMS always have low standards for professionalism when compared to any other health care profession?
Daniel Smith Daniel Smith Monday, December 24, 2012 3:56:39 PM Well I know that any person caught with drugs on a Military base will be arrested by military police and charged with a felonly under the US code, USMJ Laws.