Curt Varone warns departments that they face a new landscape when it comes to members who partake in grass.
The legalization of marijuana created a number of problems for the fire service and contributed greatly to an uptick in marijuana-related lawsuits that were filed by firefighters and applicants. It’s a multifaceted challenge that stands in stark contrast to the simple, straightforward approach to marijuana that existed for decades.
Times have changed
Until recently, cannabis, including its primary intoxicating ingredient, tetrahydrocannabinol (THC), was illegal under state and federal law. As a result, any positive test that indicated the presence of THC was grounds for discipline. Thus, when a member tested positive for THC, whether on a random, post-accident or reasonable-suspicion test, there was no need to worry about the level of impairment that the test showed. The fact that THC was present was enough to suspend or terminate a member.
That straightforward approach did not change when states began to legalize medical marijuana or decriminalize marijuana possession. The Americans with Disabilities Act (ADA) expressly excludes the use of illegal drugs from protection. Similarly, lifestyle discrimination laws that prohibit an employer from discriminating against an employee for legal activities while off duty were of no avail, because marijuana remained illegal under federal law.
The leading case in this area, Coats v. Dish Network, LLC, 350 P.3d 849 (CO, 2015), concluded that, because marijuana is illegal under federal law, it remains beyond the protection of the ADA or lifestyle discrimination laws. I still run into attorneys who assume that Coats v. Dish Network is good law.
Today, Coats v. Dish Network has become irrelevant in an increasing number of jurisdictions. In those states, the legislatures amended their discrimination laws to protect those who have a prescription to use medical marijuana as having a per se disability under state law. Those who lawfully used medical marijuana, thusly, are protected from any adverse employment action, including discipline or termination for a positive THC test.