With relative frequency, I am asked how EMS organizations can maintain a safe and legally compliant workplace in this time of legalized medical and recreational marijuana.
Today, thirty-three (33) states now permit marijuana use for medical purposes, and eleven (11) of those states permit recreational marijuana use. Given this, it is important that EMS organizations consider how this change may impact their workplace. I can assure you that your organization’s position on an employee’s use of marijuana and marijuana-based products is critical to maintaining a safe work environment. In addition, marijuana use is still illegal under federal law and federal contractors and grantees must maintain a drug free workplace under the Drug Free Workplace Act of 1988.
EMS is inherently a risky and dangerous profession. The hours can be long, the working environment unpredictable, and the work physically and mentally straining. This makes it critical that all employees be at their best and free from the influence of any drugs or alcohol. It is important that EMS organizations maintain a clear policy that is frequently communicated to ensure that all get the message.
Over the last decade, as public opinion about marijuana has shifted, there has been a corresponding change to the laws related to marijuana and marijuana-based products. There are only four states in the U.S. that have no permissible use of marijuana products. This change in opinion and law has impacted the use of marijuana by the American workforce. A report from Quest Diagnostics, a leading occupational drug testing provider, showed that marijuana has remained the most commonly detected illicit substance across all workforce categories and has dramatically increased over the last few years.
Changing public opinion has resulted in increase marijuana use leaving many employers unsure about what they can do to restrict marijuana use in their workplace given the changes in the law. It is important for EMS employers to know that they can, and should, take a very clear position on the use of marijuana and marijuana-based products by their workforce.
Federal Contractors or Grantees
If you EMS organization is a federal contractor, sub-contractor, or grantee, you must maintain a drug free workplace under the Drug Free Workplace Act of 1988. Your organization must have policy that identifies the organization as a drug free workplace. While many organizations have employees sign a Policy & Procedure Acknowledgement form, this is one where a separate acknowledgment form may more clearly drive home the organization’s commitment to the law.
Non-Federal Contractors or Grantees (Everyone Else)
For all other, non-federal contractors or grantees, you should still maintain a clear policy on marijuana, with a few exceptions. For all employees who are performing safety-sensitive positions, I would recommend maintaining the same drug free workplace position. This would include anyone who operates a vehicle or heavy machinery, as well as anyone serving an emergency telecommunicator function. As a rule of thumb, these are any position where the use of a mind-altering substance might risk the health or safety of another individual.
Employers in this category must be aware that those who do not serve in a safety-sensitive position can still be prohibited from using marijuana with some restrictions. Employers can institute an organizational drug free workplace policy with a few caveats. Many states have laws which restrict an employer’s ability to address an employee’s off-duty conduct. Additionally, it is important to consider those employees holding non-safety-sensitive positions who have medical conditions that are protected under the Americans with Disabilities Act (ADA). In these cases, the employer would need to engage that employee in the interactive process to determine if a reasonable accommodation could be provided to that individual to allow them to perform the essential functions of their job.
Cannabis-Derived Products, Including Cannabidiol (CBD)
These products are marijuana-based products that have become increasingly popular and widely not seen by users as problematic from a substance use perspective. These products include oils and creams which are typically used to ease pain or discomfort. Generally, these are not considered mind-altering as many marijuana products are. However, it is important that employers and employees know that because these products are not regulated by the Food and Drug Administration (FDA), there are no federal product marking guidelines. This means that the levels of Tetrahydrocannabinol (THC), the main psychoactive compound in cannabis, may not be accurately marked on the CBD product. This can cause an issue for EMS employees because if the CBD product with more than .3% of THC, it can result in a positive drug test. The employee can believe that they are abiding by the policy by using a CBD product that is marked as having less than .3% THC but result in testing positive for marijuana.
This can be an incredibly difficult issue for employers and employees alike. The key is to be clear with the communication of all organizational policies and procedures. In addition, the organization provides regular communications or postings with the company’s position on employee drug or substance use. Lastly, ensure that all supervisors are educated about spotting or recognizing drug or substance use in the workforce.