“There is an increasing sense that we are on the wrong road. Not only are careers being cut short, but vital industries, starved for highly skilled workers, are losing talented, safety-conscious employees for no reason.”
By Lee Seham of Seham, Seham, Meltz & Petersen LLP
As a social conservative, alcohol has always been my drug of choice. For me, the odor of marijuana on a city street evokes a discomfiting sense of lawlessness and societal decline. But I remind myself that Carrie Nation, who attacked alcohol-service establishments with a hatchet in the lead-up to prohibition, had the same feelings toward the bourbon I so relish. And so it’s time to bury my own hatchet when it comes to cannabis.
Irrespective of one’s thoughts on marijuana legalization, we have reached a point of no return both in terms of culture and economics. More than 50 percent of Americans live in jurisdictions where recreational marijuana is legal, and 74 percent have access to medical cannabis. Revenue of the U.S. cannabis market will exceed $30 billion in 2023 and will increase at double-digit rates for the foreseeable future. State treasuries hunger for the tax revenue.
Given its legality, given its ubiquity, it is time we stop gratuitously destroying careers based on marijuana tests that say nothing about impairment. The problem is particularly acute in the transportation industry, where employers are compelled by federal law to randomly test employees and remove them from their safety sensitive positions based on positive tests. Frequently, that removal is followed by termination by the employer and license action by the regulating agency.
Driven by my sympathy for the affected individuals, I have handled numerous cases for employees who have lost their jobs due to 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.
It is undisputed that the mandated testing methodologies do not reflect time-specific impairment; however, that limitation has always been met with a collective shrug by regulators. After all, the “prohibited drugs” for which the federal government requires testing are all illegal; therefore, it is considered sufficient that the test confirms that, at some time in the recent past, the employee used the drug.
By contrast, a “positive” test for the legal drug of alcohol has always required proof of current intoxication.
The obvious solution would be to apply the alcohol current intoxication approach to cannabis. The problem is that, currently, there is no reliable test for current marijuana impairment. In response to this dilemma, we have seen a sub rosa movement by certain decision makers and regulators cutting some slack for employees who test positive for marijuana.
In a case I handled way back in 1996, Arbitrator Barry J. Baroni reinstated a Continental Airlines pilot, with full back pay and seniority, based on an accidental ingestion defense. In that instance, the pilot had the “good luck” to have his ex-wife come forward and testify that she had baked a loaf of homemade rye bread with marijuana to spite him.
Shooting forward to 2023, our firm’s representation of an Alaska Airlines mechanic claiming accidental ingestion resulted in his reinstate despite the absence of a corroborating witness. Arbitrator Lynne Gomez found that, although the mechanic was unable to “conclusively establish” that he was the innocent victim of spiked food, the company’s failure make any effort to investigate the issue failed to satisfy the “just cause” standard under the union contract. The modern day legality and omnipresence of cannabis was a factor in the case.
Federal regulators have demonstrated a reluctance to take license action against individuals based on marijuana positives. Moreover, federal regulation does not require termination of employees testing positive, just their temporary removal from safety sensitive duties.
Indeed, as Arbitrator Randall M. Kelly observed in a Southwest Airlines case: “Clearly, the regulatory scheme established by the [Department of Transportation] encourages rehabilitation of employees in safety-sensitive positions who test positive once…”
Specifically, the DOT allows the employee to return to safety sensitive work upon the completion of an education/treatment program prescribed by a certified Substance Abuse Professional (SAP). Frequently, these programs consist of attending a few classes and/or watching a few videos.
For their part, labor unions have begun to show an increasing militancy in this area.
In June 2022, the Long Island Rail Road (LIRR) terminated an electrician, who had just completed four months of cancer treatment, based on a return-to-duty test that was positive for marijuana. The LIRR took the draconian action notwithstanding the undisputed fact that any cannabis use took place during the employee’s leave and the employee occupied a non-regulated position repairing air conditioners. A client of our firm, Local 589 of the International Brotherhood of Electricians (IBEW), is not only arbitrating the case but also launched a federal lawsuit asserting both constitutional claims and a violation of New York State’s Marihuana Regulations and Taxation Act (MRTA).
“He stands accused of legal drug use during a medical leave for cancer treatment—nothing more,” commented Local 589 General Chairman Ricardo Sanchez. “Will we fight for him? Damn straight we will.”
There is an increasing sense that we are on the wrong road. Not only are careers being cut short, but vital industries, starved for highly skilled workers, are losing talented, safety-conscious employees for no reason. A permanent fix—regulatory reform combined with an impairment-specific marijuana test—is years away.
In the meantime, employers need to consider the two-strike approach promoted by DOT regulation.
Lee Seham is a partner in the New York law firm of Seham, Seham, Meltz & Petersen LLP. His clients include NBA referees, airline pilot whistleblowers and unionized aircraft mechanics at several airlines, including Southwest, Alaska, Spirit, Horizon and WestJet.
Samuel Seham contributed research to this article.
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