Marijuana, for medical or legal reasons, is now legal in more than 30 states and Washington DC. The legalization of marijuana began in 2012 when voters in two states — Colorado and Washington — passed laws making the recreational use of marijuana legal.
While this trend is surprising 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 (for medical or recreational use) 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 off-duty
For example, an employee, off-duty, not representing the employer in any official capacity, and over the age of 21, can go to Las 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 the United States 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 11 p.m. should be alcohol-free and ready to work at 7 a.m. 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 10th 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 for EMS providers?
The legalization laws are relatively new. 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 your job 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.
This article, originally published December 12, 2012, has been updated with current information
