No Clear Pathway for Medical Marijuana Use by Public Safety Employees

Thursday, March 31, 2022 by Elizabeth Pagano

Now that medical marijuana is legal in Texas, will Austin allow its first responders to use it? A Monday afternoon briefing at the city council’s public safety committee meeting showed that the obstacle, for once, is not with state government, but with federal regulations.

Thanks to House Bill 1535Texas now allows licensed physicians to prescribe “low-THC cannabis” to certain patients, including those with cancer and post-traumatic stress disorder. Under state law, low-THC cannabis is defined as cannabis products containing 1% THC or less. The law does not specify whether people who are legally prescribed marijuana can take the drug in the workplace.

In September, the Council asked city staff if the city could sanction the use of medical marijuana by city employees, especially for sworn civil servants who make up a large part of the public safety services. from Austin. For now, this issue will remain part of the labor contract negotiations.

Despite its limited legality in Texas and broad legality in other states, marijuana remains a Schedule I controlled substance, making its cultivation, distribution, and use illegal under federal law. Since 2014, the Rohrabacher–Farr Amendment compelled the Justice Department to spend money to prevent states from enforcing their own marijuana laws. But for municipal governments, there are other strings that could complicate matters.

At least, that’s the position Deputy City Manager Rey Arellano presented on Monday, after several months of research into the matter.

Arellano told the committee that ATF regulations and federal law prohibit APD officers and fire department arson investigators from obtaining marijuana prescriptions because they carry firearms. Likewise, the city follows the Federal Department of Transportation regulations that prohibit employees with a commercial driver’s license, for example, from using THC products. Finally, the federal Drug-Free Workplaces Actwhich was signed into law by Congress in 1988, requires those who receive federal grants to adopt (and enforce) policies prohibiting illegal drugs in the workplace.

To find out how other localities deal with federal gates, city ​​staff asked 20 cities (12 of them in Texas) how they regulate cannabis use by first responders. Boston was the only city in the survey that allows its employees to use prescription marijuana. All 20 cities test employees for marijuana use, but not all administer random drug testing.

“I am very much in favor of treating (marijuana) the same way we treat so many other substances,” Council Member Chito Vela said, noting that there are many other drugs with comparable side effects that do not show up on any screening test. “I’m impressed with Boston, but I don’t know if it caused any conflict or problems, vis à vis the federal government.”

Council member Natasha Harper-Madison, who chairs the committee, said in her own research of cities where marijuana has been legalized, she was told they had adopted a no-ask policy when it comes to the marijuana use by employees.

“When I asked the question, the answer was: we just don’t test people,” she said. “Is it an option not to test people?”

Arellano said the question of whether to do random or targeted testing is something city management sees as part of contract negotiations. Currently, the city conducts random testing at all three public safety departments as well as “just cause” testing when there is a reasonable suspicion of drug use on the job or when an accident has occurred.

“It’s interesting to me that we have so many cases of domestic violence, substance use disorders (which involve) substances that go undetected by the tests we do, but we’re so concerned about this particular stuff,” Harper-Madison said. “I think it’s inconsistent.”

Chief Medical Officer Mark Escott appeared to agree with this statement.

“The concern for us is more about the impairment,” he said. “And the impairment could potentially be from THC, but also other drugs that are already being prescribed in large numbers to our staff in all likelihood. Things like amphetamines, narcotics…basically any drug that says on the label: “Do not operate heavy machinery, it may cause drowsiness.

Escott noted that one of the approved uses of THC under state law is the treatment of PTSD, which is particularly relevant for sworn employees of public safety departments.

“We have a significant number of people affected by trauma that they see in emergency services, fire, police and other services who want this to be an option,” he said.

Escott said that, for his office, the main problem with THC was that it is still federally illegal. “It’s hard for us to move around at this point, even if we wanted to. But we’re definitely having these conversations…so we can do what’s legal and reasonable for us.

“I think we are trying to find a solution that allows us to comply with all the regulations in place,” Arellano said.

After researching the matter, staff members opted to develop a policy on the use of THC as part of the contract negotiation process for each public safety service, although this may change with explicit guidance from the board. municipal.

The city already has cessation of cannabis use as a disqualifier for EMS service after a successful campaign by the Austin EMS Association and Texas NORML.

An Austin Police Department spokesperson told the austin monitor that cannabis use continues to be a disqualifier for employment, saying, “Federal and state law prohibits the use of cannabis by police officers. Our current disqualification is cannabis use within the past two years.

The issue still seems to be in play as part of the fire department’s hiring process, although cannabis is not specifically mentioned. A list of disqualifications on the city’s website includes the disclaimer: “The City of Austin is a drug-free workplace. As part of the hiring process for this position, candidates selected as finalists will be subject to mandatory pre-employment alcohol and drug testing. In addition, firefighters are subject to periodic random drug testing. A question on the latest Fire Cadets application echoes the warning, asking if applicants are willing to undergo drug testing as part of the application and employment process.

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