Canna-Business Decisions: Challenges for EMS Employers in a Time of Legalized Marijuana
Speakers: Scott Moore, Esq. & Margaret Keavney, Esq.
There has been a wave across the U.S. of legislation that has legalized medicinal and recreational marijuana. This wave has caused considerable challenges for EMS employers given the nature of the work performed by the EMS workforce. In many instances, the state law prohibits an employer from discriminating or taking other disciplinary action against workers for their off-duty marijuana use. Many EMS employers are federal contractors or grantees and must abide by the Drug Free Workplace Act of 1988. However, due to the newness of legalized marijuana, the application of the state and federal law has not played out in the courts allowing employers to understand how to ensure compliance with laws that appear to contradict each other. EMS attorneys, Margaret Keavney of Keavney & Streger, LLC and Scott Moore, AAA HR and Operations Consultant will host a point-counterpoint town meeting where they will discuss the intersection of current law and will provide recommendations for EMS leaders to ensure that they are providing a safe working environment for both employees and patients.
Cumberland Goodwill EMS (PA) hang up a help wanted sign, but no one answered.
Assistant Chief Nathan Harig tells ABC 27 they’re seeing a shortage of paramedics and are trying to hire a paramedic for an open position. One problem: not one person applied despite the agency offering a $20,000 signing bonus and $25 per hour pay.
“We’re doing everything we can to try to motivate people to come on in but it’s just not working,” Harig told the station.
Yesterday, the U.S. Supreme Court issued a decision that settles the greatly contested issue of whether Title VII of the Civil Rights Act’s protection against discrimination on the basis of sex, includes sexual orientation and gender identity. The ruling stems from three cases, Altitude Express Inc. v. Zarda, Barstock v. Clayton County, Georgia, in which the plaintiffs were terminated following their employer learning that each were gay, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, where the plaintiff was terminated after she informed her employer that she was going to undergo gender reassignment surgery.
The decision, which was written by Judge Gorsuch essentially states that one cannot discriminate against an individual on the basis of their being gay or transgender and not offend Title VII’s prohibition on sex-based discrimination. This ruling settles years of contradictory administrative interpretations and enforcement of sex-based discrimination under Title VII. While most states have settled this issue by enacting state-level prohibitions on discrimination on the basis of sexual orientation or gender identity, this definitively ensures the protections of entire classes of individuals who were previously unprotected by the law.
Employer are encouraged to revisit all policies, procedures, and practices to ensure that they are compliant with the U.S. Supreme Court ruling. As always, members are encouraged to contact the American Ambulance Association to obtain compliance assistance.
A new Nevada law that bans employers from refusing to hire job candidates who fail a drug test due to the presence of marijuana has specifically carved out Fire, EMS, or employers whose employees must operate a motor vehicle. The new law, which was signed by Governor Sisolak on June 5th makes it unlawful for most employers to fail to hire a job candidate on the basis of failing a drug screen due to the presence of marijuana. Nevada is the first state to pass a law of this nature. The new law takes effect in 2020.
Many employers are struggling to address their employee’s drug use and its impact on the workplace as thirty-three (33) states and the District of Columbia have passed laws that legalize marijuana in some form. This is particularly difficult with EMS and public safety employers. Generally, most EMS and public safety employers prohibit employee use of marijuana and other drugs because they are federal contractors and are subject to the Drug Free Workplace Act. Other employers prohibit employee drug use because EMS personnel perform “safety sensitive” positions as defined under the Department of Transportation Regulations. However, those employers who are not subject to the Drug Free Workplace Act must be sensitive to this law for those employees that do not perform safety sensitive functions. Employees in those non-safety sensitive positions, such as administrative duties, may be protected by laws like the law that was just passed in Nevada.
It is critical that employers understand their rights and responsibilities as it applies to drug testing and workplace drug use. The American Ambulance Association can assist member companies who are struggling to make sense of this new law and what they can do to control drug use in their workplace. The AAA held numerous EMS Supervisor SimLabs last year which put EMS Supervisors and Managers through the paces of conducting an investigation of a Sexual Harassment allegation. We are excited to announce that we are adding to the SimLab offerings with a new workshop specifically geared for Workplace Drug Use & Reasonable Suspicion in EMS. To learn more about this, or any EMS Supervisor SimLab, please contact the AAA.