Smoke Condition: Regulating Marijuana Use in the Volunteer Fire Service

Significant media attention has focused on the passage of New York’s “Marijuana Regulation and Taxation Act” (“the Act”). While the stated intent of the Act is “to regulate, control, and tax marijuana,” coverage of the Act focused primarily on decriminalization and the ability of adults aged 21 years and older to lawfully possess certain quantities in the home. As a result, many firefighters and authorities having jurisdiction over fire protection asked about the impact of this law on the volunteer fire service.

For starters, the Act allows a governing board to adopt rules or a policy governing marijuana at the firehouse. Section 2 of the Act, entitled “Legislative Findings and Intent,” states “nothing in this act is intended to limit the authority of any district, government agency or office or employers to enact and enforce policies pertaining to cannabis in the workplace.” Elsewhere, the Act explains that a property owner with a smoke-free policy in place is not required to permit the smoking of cannabis on its premises.

Given the 24-hour nature of emergency response, a written policy should address off-premises consumption of cannabis and whether any level of impairment will be tolerated should a firefighter respond to an alarm. According to the National Institute on Drug Abuse of the National Institutes of Health, “marijuana significantly impairs judgment, motor coordination, and reaction time, and studies have found a direct relationship between blood THC concentration and impaired driving ability.”1 Firefighting – and fire training – requires firefighters to function at peak performance for their own safety and the safety of their crew. Governing boards must also consider the safety of the general public with respect to cannabis consumption by vehicle operators, including personally owned vehicles, when such vehicles are being used in furtherance of a firefighter’s response to an emergency call.

Given the 24-hour nature of emergency response, a written policy should address off-premises consumption of cannabis.

A firefighter can be disciplined under a policy if it is determined that he or she is impaired at the firehouse in violation of a district or department policy. The Act allows an employer to “take action” against a person when he or she “manifests specific articulable symptoms”. While the Act does not state what such symptoms are, your policy should. According to a recent article in the International Journal of Emergency Medicine, exemplar symptoms include: elevated heart rate; bloodshot eyes; diminished tears; dry mouth; slurred speech; lack of attention; motor delay; odor; decreased concentration; confusion; and The Act identifies several instances when an employer can take action against an employee who exhibits “articulable symptoms”. These instances include when impairment (1) decreases or lessens the employee’s performance of the duties or tasks of the job position; (2) interferes with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law; or (3) when an employer is required to act by another law or ordinance.3

The Act also states that an employer is not obligated to violate federal law to comply with the Act such that the entity could lose federal funding. This is an important consideration for fire service entities that receive federal grants. It is noted that, as of this writing, marijuana remains listed as a Schedule I drug under the Federal Controlled Substances Act.4 Under the Federal Drug- Free Workplace Act, a fire agency that is a federal grant recipient must prohibit the possession and use of medical marijuana in the workplace.5  However, the Drug Free Workplace Act does not require a fire service agency to prohibit possession or firefighter off-duty medical marijuana use.

To the extent your AHJ or Department already has a drug, alcohol, or substance abuse policy, it is likely that such a policy can remain in effect with few amendments, such as identifying “articulable symptoms” as stated in the new law.

Another significant consideration for individual firefighters and their families is eligibility for Public Safety Officers’ Benefits (“PSOB”) in the event of injury or death to a firefighter. For purposes of determining eligibility for benefits, a PSOB official “may draw an inference of voluntary intoxication at the time of death or catastrophic injury” if a firefighter used marijuana (or any other drug listed as a Schedule I controlled substance) “as of or near the injury date”.6 No PSOB will be paid if it is determined that the firefighter was “voluntarily intoxicated” at the time of injury or death.7 There is no “New York exception” to this federal law.

To the extent your AHJ or Department already has a drug, alcohol, or substance abuse policy, it is likely that such a policy can remain in effect with few amendments, such as identifying “articulable symptoms” as stated in the new law. Given the proliferation of applications for – and recipients of – grants through FEMA’s Assistance to Firefighters Grants Program, the astute fire service agency should carefully navigate this potential minefield to ensure that critical funding streams for staffing, apparatus and equipment, as well as eligibility for PSOB, are preserved.

Timothy C. Hannigan serves as General Counsel to FASNY, and is a volunteer firefighter with the Elsmere Fire District in Delmar, New York. He can be reached at www.hannigan.law. Please note that the information contained herein does not establish an attorney-client relationship between the author and the reader. Matters addressed are for information purposes only and the reader should seek advice from competent local counsel in regard to taking action on any matters addressed herein.

1 National Institute of Drug Abuse. 2020, April 8. Does marijuana use affect driving?. Retrieved from https://www.drugabuse.gov/publications/research-reports/marijuana/does-marijuana-use-affect-driving

2 Takakuwa, Kevin M, and Raquel M Schears. “The emergency department care of the cannabis and synthetic cannabinoid patient: a narrative review.” International Journal of Emergency Medicine vol. 14,1 10. 10 Feb. 2021, doi:10.1186/s12245-021-00330-3

3(see Labor Law § 201-d [4-a]).

4(see 21 USC § 812).

5(see 41 USC § 81).

6(see 28 CFR 32.5).

7(see 34 USC 10282[a][2]).