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No clear path forward 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 City Council’s Public Safety Committee meeting showed that the hurdle, for once, does not come from the state government, but from federal regulations. 

Thanks to House Bill 1535, Texas now allows registered 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 that have 1 percent THC or less. The law is silent on whether those who are legally prescribed marijuana may take the drug in the workplace.

In September, Council asked city staff whether the city could sanction the use of medical marijuana by city employees, particularly for the sworn civil service employees who make up much of Austin’s public safety departments. For now, that question will remain a part of 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 unlawful under federal law. Since 2014, the Rohrabacher-Farr amendment has constrained the Justice Department from spending money to prevent states from implementing their own marijuana laws. But for city governments, there are other strings that might make things more complicated. 

At least that was the position Assistant City Manager Rey Arellano presented Monday, after several months of research into the issue. 

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

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

“I’m very supportive of treating (marijuana) the same way we treat so many other substances,” said Council Member Chito Vela, noting there are many other drugs with comparable side effects that don’t show up on any drug tests. “I’m impressed with Boston, but I’m not sure if that’s caused any conflict or any issues, vis a 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 that they had adopted a don’t-ask policy when it comes to marijuana use by employees.

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

Arellano said the question of whether to perform random or targeted testing was something city management considers part of contract negotiations. Currently, the city does random testing in all three public safety departments as well as testing “for cause” when there is reasonable suspicion of drug use on the job or when an accident has occurred.

“It’s interesting to me that we have so many instances of domestic violence, of substance use disorder (that concern) substances that are not detected by way of the testing that we do, but we’re so concerned about this particular substance,” 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 related to impairment,” he said. “And impairment could potentially come from THC, but also from other medications that are already prescribed in significant numbers to our personnel in all likelihood. Things like amphetamines, narcotics … basically any medication that says on the label, ‘Do not operate heavy machinery, may cause drowsiness.’”

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

“We’ve got significant numbers of folks that are impacted by trauma that they see in EMS, fire, police and other departments that want to have this as an option,” he said. 

Escott said that, for his office, the main issue with THC was that it is still illegal on a federal level. “That is hard for us to get around at this stage, even if we wanted to. But we certainly are having those conversations … so we can do what is legal and reasonable for us to do.”

“I think we’re trying to find a solution that keeps us square with all the regulations that are out there,” Arellano said. 

After studying the issue, staffers have opted to craft a policy on THC use within the contract negotiation process for each public safety department, though this could shift with explicit direction from City Council. 

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

A spokesperson for the Austin Police Department told the Austin Monitor that cannabis use continues to be a disqualifier for employment, saying, “Federal and state law prohibit cannabis use by police officers. Our current disqualifier is cannabis use within the last two years.”

The question appears to still be in play as part of the Fire Department hiring process as well, though cannabis is not specifically mentioned. A list of disqualifications on the city website includes the warning, “The city of Austin is a drug-free workplace. As part of the hiring process for this position, applicants selected as finalists will be subject to mandatory pre-employment alcohol and drug testing. Additionally, firefighters are subject to periodic random drug screenings.” A question on the most recent fire cadet application echoes the warning, asking if applicants are willing to subject to drug testing as a part of the application and employment process.

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