Mutual Aid

How Recent Marijuana Legislation Could Affect Fire Department Policy

Amidst the fervor of the race for president, voters quietly weighed in on two state initiatives (although they're getting more press now that national elections have quieted down).

In Washington, voters considered I-502, the so-called "marijuana reform" initiative. Medical marijuana has been legal in the state for years; this initiative would completely legalization of the drug. The state would be allowed to tax and sell it, and anyone over the age of 21 could buy it. If passed, marijuana theoretically would be no more difficult to buy than alcohol.

In the months leading up to the election, opponents bought ads in newspapers and on television that warned of catastrophic societal impacts if the law was passed. The voters of Washington apparently didn't believe it, and on Nov. 6, they approved the law by a wide margin. Colorado voters passed a similar law on election night.

Since election night, I've received several e-mails from colleagues around the country wondering how our department is going to implement strict restrictions on marijuana usage among firefighters now that its use is legal by state law. The simple answer is we aren't and we have no plans to.

In discussing the potential impact with our human-resources department, it's likely we'll treat firefighter marijuana use the same we do alcohol. As long as you're not letting it affect your job, getting in to legal trouble because of it, or showing up to work under the influence, there's likely no issue my administration or municipality is going to have with it. The voters have said it's to be treated no differently than alcohol, so why should I?

Also, it's quite unlikely we could create a policy to ban something that's completely legal outside the walls of the fire station. We could certainly tell them they can't do it on duty (just like alcohol), but once they go home they fall under societal laws. I'm told there could be an issue with employees who require a commercial driver's license and marijuana usage due to federal regulations, but firefighters in Washington aren't required to have one, so this won't be an issue in our department.

We're still in a little bit of an unknown period right now in Washington before the law takes effect. Marijuana still is illegal under federal law. Most observers agree, however, that while the federal government could likely take down sellers if they wanted to, they can't force the state to arrest and prosecute users. Indeed prosecutors around the state are beginning to drop most pending marijuana possession cases and have indicated they won't accept any more so long as the possession meets state law.

Some national pundits are saying this movement by Colorado and Washington could slowly transform marijuana laws across the entire country. Fire chiefs around the country should be prepared if a movement begins in your state. We don't plan on changing the way we do business or placing more restrictions on our firefighters. What would you do?

Dominick Swinhart is the fire chief of the Camas-Washougal Fire Department in Camas, Wash.

Discuss this Blog Entry 47

Anonymous (not verified)
on Nov 28, 2012

I like the way this guy talks. "my problem if ur doing it between 9-5, not my problem before or after (as long as you didnt smoke on ur way to work this morning)"

Anonymous (not verified)
on Nov 30, 2012

Does your department receiver any federal funding? Or are members of your department involved with special teams or groups ( technical rescue, disaster response teams etc?) If so, does this have any impact on how you will regulate marijuana use by your staff? Or, are you obligated to regulate it because of federal money being received? I agree that what first responders do during off duty hours is there choice and as long as it is not effecting job performance there should be no issue. Also, per I-502 we now have a DUI standard to help determine intoxication by measuring the active THC in your blood. I would assume this standard would be a useful tool for employers to determine impairment as opposed to current practice which Measures inactive THC through urine tests. It's nice to hear that departments are taking a practical and rational approach to this new law. Thank you and your department for its service.

G Carttar (not verified)
on Nov 30, 2012

Good policy position. There is much complexity about this going forward.

Anonymous (not verified)
on Nov 30, 2012

Sorry... but you dont show up to work with alcohol in your
bloodstream and the same goes for weed.
This is one time when the fire service should not copy what
the West Coast says is best.

Anonymous (not verified)
on Nov 30, 2012

The new laws specifically say that companies can still have certain drug-use policies for their employees, and Federal law still prohibits any possession of marijuana.

Chief Tim Olsen (not verified)
on Nov 30, 2012

Our policy at Briceland Fire, in the middle of the "Emerald Triangle" Humboldt County, CA. "No drugs, No alcohol" while on duty or representing the fire department. Simple! We don't need the Feds nor the State to set our standards of conduct.

Peter (not verified)
on Dec 31, 2012

With all due respect Chief, I believe that is exactly what the author said too. No drugs or alcohol when you are on-duty, and I'll assume he would include any other time you are representing the department. However, when you're off-duty you are on your own time. Is that what you meant too?

Jeff DeLung (not verified)
on Nov 30, 2012

I can't help but wonder how you would determine if someone is under the influence. With alcohol, you have a tool for measurement. Is there something for marijuana? Also, what do you suppose the implications are to visitors of Washington and Colorado? If a firefighter tested positive in a state where it is illegal but had been to one of these states recently, have they violated the drug policy in their jurisdiction?

chiefgsmith
on Nov 30, 2012

As a Fire Chief in Washington, I see that there are still many questions to be answered. However, to be proactive and in light of the State Law that will be in effect on December 6, 2013, we have taken the following steps.
We have edited our General Order related to illegal and legal substances use and storage on Department Properties (stations, grounds, vehicles) to include “being under the influence” while on duty of legal substances (alcohol, prescription and over the counter medications). In a nut shell, it will for now be treated like alcohol. It cannot be in the Stations or in the Vehicles; it cannot be used on Department Property (by those on or off duty or those that are not members). You cannot be under the influence (same as alcohol don’t use or be under the influence while on duty or performing Department functions). We do not allow alcohol to be used on Department property or at social functions sponsored by the Department. In essence, we added the word Marijuana to our rules related to Alcohol.
Now the question is what about the current blood and urine tests related to THC? Especially for new hire testing. This is an issue that will probably be decided by case law or State Law. There is a difference between active and inactive THC. Even the State (Washington) is currently attempting to deal with the new DUI law related to THC. There is very little factual research related to this and its implications. Medical Marijuana has been legal for some years; we have dispensaries in our service area right now.
We will wait to see what happens with case law and State law and enforce our current policy of “sober” while on duty……regardless of what substance we are talking about. We are a combination department, so these “rules” relate to career, volunteer and staff.

chiefgsmith
on Nov 30, 2012

As a Fire Chief in Washington, I see that there are still many questions to be answered. However, to be proactive and in light of the State Law that will be in effect on December 6, 2013, we have taken the following steps.
We have edited our General Order related to illegal and legal substances use and storage on Department Properties (stations, grounds, vehicles) to include “being under the influence” while on duty of legal substances (alcohol, prescription and over the counter medications). In a nut shell, it will for now be treated like alcohol. It cannot be in the Stations or in the Vehicles; it cannot be used on Department Property (by those on or off duty or those that are not members). You cannot be under the influence (same as alcohol don’t use or be under the influence while on duty or performing Department functions). We do not allow alcohol to be used on Department property or at social functions sponsored by the Department. In essence, we added the word Marijuana to our rules related to Alcohol.
Now the question is what about the current blood and urine tests related to THC? Especially for new hire testing. This is an issue that will probably be decided by case law or State Law. There is a difference between active and inactive THC. Even the State (Washington) is currently attempting to deal with the new DUI law related to THC. There is very little factual research related to this and its implications. Medical Marijuana has been legal for some years; we have dispensaries in our service area right now.
We will wait to see what happens with case law and State law and enforce our current policy of “sober” while on duty……regardless of what substance we are talking about. We are a combination department, so these “rules” relate to career, volunteer and staff.

Anonymous (not verified)
on Dec 3, 2012

As a firefighter in Washington, I wonder how this would be influenced by our presumptive illness laws. Right now if you smoke, the presumptive illness goes away for some of the cancers common to the industry. Will it be the same for smoking marijuana?

Chief 800 (not verified)
on Dec 10, 2012

This sure does present a lot of questions.
Here are a few more to think about. Federal driving laws for DOT CDL qualified people will still make it against the law.

Now I understand that most states do not require firefighters to have a CDL however if there is a wreck how is it handled? If you are sued how is the jury and courts going to view this?

I would say that Chief g smith is on the right track with this, if you have no rules as to what is or is not under the influence then someone is hurt or dies while in the presence of someone or is the one who caused them to be hurt or killed, this could open all kinds of issues etc.

This is going to be interesting to see how it plays out.

Dominick S. (not verified)
on Dec 10, 2012

Great comments and questions by several people. I don't have all the answer yet, and there's still a lot of "wait and see" going on right now. I'll try to answer what I can:

Yes, we do receive federal funds, specifically through a SAFER Grant we received earlier in '12. We're not sure what this means. Thus far nobody from FEMA has contacted us to tell us that we better make sure nobody is using marijuana in our fire station. In fact, most federal rules and laws related to workplace drug use specifically cite "illegal drugs." Illegal by what standards, state or federal? We don't have any direction on that yet.

2. We're aware that we can implement policy that restricts marijuana usage, even if it's legal. The issue we have in Washington is that we're a collective bargaining state. I can't take away a "right" my employees have by law without negotiating with them. That's not to say they wouldn't agree to it, we just haven't moved in that direction yet.

3. I've received the "how do you tell if someone is high" question several times. I typically answer that with another question, "How do you tell if someone is high on Vicodin?" Personally, I'd go by their eyes, how well they seem to be mentating, speech, motor function, etc. Just because we can't smell it like we can smell alcohol doesn't mean much in my book. There are all sorts of controlled substances, both legal and illegal, that firefighters and other public employees have likely been using for years. We ferret them out like we do any other substance that impacts cognitive abilities.

4. And to the most recent commenter asking about impacts on presumptive illnesses, I don't have an answer to that right now.

Anonymous (not verified)
on Dec 27, 2012

Dominick, I can give some input to the "illegal drugs" side. For all Federal agencies marijuana remains an illegal drug. State and local laws do not affect this. The actual level of federal enforcement seems to be something that changes with the current breeze in DC.

Anonymous (not verified)
on Dec 26, 2012

What about those of us who don't want to be caught up in the second-hand smoke emanating from people smoking marijuana. What does this do to affecting minor-aged children under 21? Is this legal to affect them with second hand smoke? There currently are laws about smoking in public places to prevent second hand smoke from affecting surrounding citizens in public places. Shouldn't this also hold true for smoking marijuana. Has anyone thought about these and many more issues surrounding the affects of marijuana on other humans and animals as innocent victums having to inhale second hand smoke?

Dominick S (not verified)
on Dec 28, 2012

My understanding is that the current law in Washington prohibits smoking marijuana *anywhere* in public. The only legal place you could smoke it would be in your home. Now, I doubt there's anything in there that says you can't smoke it around minor children in your home, but there are no laws that prohibit that with cigarette smoking either.

Mike B (not verified)
on Dec 29, 2012

Unless I am remembering the facts incorrectly, both the WA and CO statutes allow for marijuana use only on private property. You may possess up to one ounce, but lighting up is not allowed just anywhere you like, therefore you are less likely to encounter second-hand marijuana smoke than you are tobacco smoke because tobacco may be smoked in public areas not subject to limitations (for example, cigarettes could be smoked walking down the street as long as the smoker stays the specified distance away from any entrances to a building, marijuana smoking is NOT allowed on public property).

chiefgsmith
on Dec 31, 2012

The "new" law in Washington State forbids the public use and/or display of marijuana. This of course does not preclude the second-hand exposure to persons and/or animals in private homes, as with the use of to Tobacco. The new law in Washington is probably more restrictive than in Colorado, it does not allow private cultivation or the private exchange of marijuana. The use of medical marijuana has been legal in Washington for a number of years and we have several medical marijuana outlets in our District. From my perspective, this has had little to no impact. The State Court has already ruled in previous cases that an employer can restrict the use of marijuana and can terminate an employee and/or not hire if a person tests positive. It is not the "wild west" and anything goes here. The State has until December of 2013 to establish the laws for growing, packaging and distribution. While technically its legal to possess, there is no "legal" form of distribution "yet". This will be an on-going issue and much is yet to be decided. I suspect that we will see this happening in many more states over the next few years....depending on what the Federal Government decides to do. I wonder if Fire Chiefs were asking these same questions when Prohibition was repealed??

Anonymous (not verified)
on Dec 31, 2012

Just because something is made legal by a vote does not make it right, moral or ethical, especially when it comes to those in public service. Think about it. Do you want a Dr., Medic or Nurse treating you who could be suffering from a buzz hangover from the night or day before? Simple answer is to write dept. policy on Nonuse of weed (based on federal law) by public service employees (Police,Fire,EMS & Rescue). I'm sure some smart lawyers could argue this to death but it would save federal funding for the dept. by the govt. and keep the bar high (no pun intended) for critical public service workers. I would hope most of our public servants would hold themselves to a higher (no pun intended again) standard on their own without more rules and laws dictating what is right or wrong. If these new laws are allowed to take effect without certain provisions, nobody will be safe anymore. Think about it next time you fly, drive or do anything else where someone's delayed reactions could cost your life.

Anonymous (not verified)
on Dec 31, 2012

Thought everyone would might find this article interesting. It is written by attorney Kimberlie Ryan and It discusses the drug free workplace act and how it impacts the new marijuana legislation in our state. The cliff notes version for those that don't want to read the article is as follows: Compliance with the drug free work place act does not require fire departments to restrict employees from using marijuana off duty. Even if the department receives federal funding, the DFWA only specifics use of "illegal" substances in the workplace. The article can be found at: http://cbaclelegalconnection.com/2012/12/spark-the-discussion-top-five-m...

AnonymousBob Harvey (not verified)
on Jan 2, 2013

Being in Colorado as soon as this initiative passed I was asked by the Board how this could be regulated within our ranks, the simple answer is that the same rules as alcohol and fitness for duty will apply, the more complex issue is that anyone injured or killed in the line of duty that showed THC in the blood or alcohol would not be eligible for the PSOD&D benefit available through the Feds to the the family members. Unfortunately I know of at least one denial in Colorado due to the Firefighter killed in the line of duty that did test positive for THC in the blood! Let the grants, CDL licensing, insurance provider and the Federal PSOB programs be your guides for your people, but make sure they are informed!

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