In January, Vermont became the ninth state to OK recreational marijuana for adults, reflecting a steadily growing trend. And in more than half of all states, medical marijuana is legal.
But federal law considers marijuana an illegal drug, so weed is off limits for those in safety-sensitive jobs under Coast Guard and Department of Transportation (DOT) watch. Still, state initiatives are raising some concerns for maritime operators and employees.
“The Coast Guard has been abundantly clear that those federal regulations pre-empt any state laws,” said Amanda Gamblin, an employment law attorney with Schwabe Williamson & Wyatt in the Pacific Northwest, an area in the thick of the recreational marijuana world.
So the consequences are the same for someone who tests positive for marijuana as for alcohol — they face administrative proceedings and may be terminated. Applicants who use medical marijuana are denied credentials. Gamblin, whose focus includes maritime issues, isn’t hearing from any maritime clients worried that they might have to continue to employ someone who tested positive. “What they’re worried about is being able to continue to find employees,” she said. So far, they’re not seeing a lot of failed drug tests. “The bigger question is: Are young people not going into maritime jobs because they know what it means to have that license? And nobody knows the answer to that question.”
The one thing everyone agrees on, Gamblin said, is that someone can test positive for marijuana with a urinalysis when they’re not actually impaired. “That’s a huge pickle for maritime employers.”
One of the states where recreational use is legal — Maine — has created an especially sticky situation with a provision in the law effective in February that bars employers from discriminating against workers who use marijuana in their off time.
The state’s Department of Labor guidelines say an employer may prohibit use or possession of marijuana at work and discipline employees under the influence. But they “may not be able to discipline an employee or disqualify a job applicant based solely on a positive marijuana test.” However, a department spokesman said that the state doesn’t regulate or oversee testing of federally regulated employees.
Nevertheless, the problem is that the law “doesn’t address the whole drug testing issue,” said Kathryn Russo, an employment law attorney with Jackson Lewis P.C., Melville, N.Y., who specializes in workplace drug and alcohol testing. Traditionally, employers could take action if an employee tested positive no matter where they used marijuana. Now some companies have to decide if they even want to do pre-employment testing.
“Most employers are just scratching their heads trying to figure out how much risk they want to take,” she said. Others in more safety sensitive industries probably are still going to test. “It’s really a dilemma.”
DOT is very clear that they don’t allow marijuana under any circumstances, Russo said.
The state suggests employers call their lawyers before taking any action or preparing new drug policies. The drug-testing issue may ultimately get resolved in court.
THC, which produces the high, can stay lodged in fatty tissue for up to 30 days, or longer for habitual users, said Mark Meeker, assistant general counsel at American Maritime Safety Inc., a White Plains, N.Y.-based consortium that administers drug and alcohol testing compliance programs for maritime operators. Smoking marijuana leaves inactive THC, which is detected in commonly used urine tests. Blood tests can detect active THC.
“There’s always a little bit of confusion any time you have state laws conflicting with federal law, especially in an industry where you have a wide variety of age ranges represented,” he said.
The concerns they’re hearing include questions about how to handle a crewmember that has a prescription for medical marijuana. “The answer is ‘no’,” he said. “It’s still a Schedule I drug. It doesn’t matter what your state says.” It’s a real challenge for them to find people because so many people out there are using one kind of drug or another, Meeker said.
Positive tests for marijuana rose nearly 75% — from 5.1 % in 2013 to 8.9 % in 2016 — among the more than 10 million U.S. workers tested, the annual Quest Diagnostics Drug Testing Index showed.
“Among the federally-mandated, safety-sensitive workforce, which only utilizes urine testing, marijuana positivity increased nearly 10% (0.71% in 2015 versus 0.78% in 2016), the largest ever year-over-year increase in five years,” Quest said in its most recent report. “In Colorado and Washington, the first states in which recreational marijuana use was legalized, the overall urine positivity rate for marijuana outpaced the national average in 2016 for the first time since the statutes took effect.”
Acknowledging the opioid epidemic, DOT just added semi-synthetic opioids to the list of drugs that mariners and others in safety-sensitive positions will be tested for. They currently are screened for marijuana, cocaine, amphetamines, phencyclidine (PCP), and opiates.
Starting this year they’ll also be tested for hydrocodone, hydromorphone, oxymorphone, and oxycodone, which the Coast Guard describes as the most common prescription drugs of abuse. Common names for these include OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo.
Mariners who test positive for opioids have to provide a valid prescription to the medical review officer, a Coast Guard bulletin said. If there’s a legitimate medical explanation, the employer will get a negative report. If not, the examiner will report a positive result, and the employer must take the mariner off safety-sensitive duties and notify the Coast Guard.
As for marijuana, the Merchant Mariner Medical Advisory Committee (MEDMAC) has recommended that the Coast Guard keep its ban on medical use of hallucinogens. “Performing shipboard duties under the influence of marijuana, medical marijuana or medications containing marijuana poses a significant safety risk,” the committee concluded.