There is a growing sense that we’re on the wrong track. The loss of highly-skilled workers in vital industries is not only a career ending, but also a way for these industries to lose talented and safety-conscious employees. .”
By Lee Seham, Seham, Seham, Meltz & Petersen LLP
Alcohol has always been the drug I choose as a social conservative. The smell of marijuana in a city street gives me a disconcerting sense of lawlessness, and of societal decline. Carrie Nation attacked alcohol-service businesses with a hatchet before prohibition. I think she felt the same way about the bourbon that I love. It’s now time to put my own hatchet down when it comes cannabis.
We have reached the point of no-return in terms of both culture and economy, regardless of how one feels about marijuana legalization. Over 50 percent of Americans reside in jurisdictions that have legalized recreational marijuana and 74 per cent can access medical cannabis. The U.S. Cannabis market revenue will surpass $30 billion by 2023, and continue to grow at double-digit rate for the near future. State Treasury’s are hungry for tax revenue.
We should stop destroying careers on the basis of marijuana tests which do not indicate impairment. This problem is especially acute in the transportation sector, where employers must randomly test their employees and terminate them from safety-sensitive positions when they test positive. This removal is often followed by termination of the employee by the employer, and licensing action by the regulatory agency.
My sympathy for those affected has led me to handle numerous cases of employees who lost their jobs because of positive tests. Moreover, most of the cases I have handled have resulted in reinstatement–sometimes due to specimen collection errors, occasionally due to deficient medical review and once due to a laboratory’s failure to properly validate its testing methodology. However, our nation’s marijuana dilemma calls for a broader approach: a change in policy.
The fact that mandated testing methods do not reflect impairment in relation to time is undeniable. However, this limitation has been met by regulators with a collective shrug. The “prohibited drug” that the federal government mandates testing for is illegal. Therefore, it’s considered enough that the test confirms the employee has used the drug at least once in the past.
A “positive” alcohol test has always required proof that is currently drunk.
It would seem that the obvious solution is to use the same approach as alcohol to determine cannabis intoxication. There is currently no reliable test to determine marijuana impairment. As a response to this problem, certain decision-makers and regulators have begun a under the table campaign that allows them to give employees some leeway if they test positive for marijuana.
In 1996, I was the arbitrator in a case where Barry J. Baroni reinstated Continental Airlines Pilot, with all back pay and seniority. The defense used was accidental ingestion. The pilot was “lucky” enough to have his former wife testify in that case that she baked a homemade loaf of rye bread laced with marijuana just to spite him.
In 2023, despite the lack of a witness to corroborate our client’s claim of accidental ingestion, we were able to reinstate him despite his absence. Arbitrator Lynne Gomez determined that although the mechanic could not “conclusively prove” that he had been the innocent victim, the company failed to make any efforts to investigate the matter. This did not satisfy the “justification” standard of the union contract. Cannabis’ legality in modern times and its ubiquity were factors in this case.
Federal regulators are reluctant to act against licenses based on positive marijuana tests. Federal regulations do not mandate termination for employees who test positive. They only require their temporary removal from duties that are safety-sensitive.
As Arbitrator Randall M. Kelly noted in a Southwest Airlines Case: “Clearly the regulatory scheme set up by [the Department of Transportation] promotes rehabilitation of workers in safety-sensitive jobs who test positive after …”
The DOT specifically allows an employee to return back to work that is safety-sensitive after completing a prescribed education/treatment program by a Substance Abuse Professional. These programs often consist of a few classes or watching some videos.
The labor unions, for their part have started to become more militant in this regard.
The Long Island Rail Road terminated an employee in June 2022 who had completed four months cancer treatment. This was based on the results of a marijuana test taken upon returning to work. The LIRR’s draconian actions were taken despite the fact that the employee had used cannabis during his leave, and was working in an unregulated job repairing air conditioners. Local 589 of International Brotherhood of Electricians, a client of ours, is arbitrating the case and has also filed a federal suit asserting constitutional claims and a violation of New York State’s Marihuana Regulations and Taxation Act.
Ricardo Sanchez, Chairman of Local 589, said that he was accused only of using legal drugs during a leave to receive cancer treatment. “Will he fight for us? “We will fight for him, no doubt.”
We are increasingly aware that we’re on the wrong track. Careers are being cut short and vital industries are losing safety-conscious, talented employees without cause. It will be years before we have a permanent solution, namely a regulatory reform coupled with an impairment-specific cannabis test.
Employers should consider the DOT’s two-strike policy.
Lee Seham is a lawyer at the New York firm Seham, Seham, Meltz & Petersen LLP. Seham’s clients include NBA referees as well as airline pilot whistleblowers. He also represents unionized aircraft mechanics for several airlines including Southwest, Alaska Spirit, Horizon, and WestJet.
Samuel Seham conducted research for this article.
New York Officials advise drug treatment providers to stop testing patients for marijuana in most cases
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