By Neal Simpson
The Patriot Ledger
QUINCY, Mass. — For decades, police and firefighters in Massachusetts have been prohibited from using tobacco whether on or off the job.
Soon they may be barred from using another legal substance as well: marijuana.
Chiefs across the state have been updating policies and sending out memos to make it clear to their employees that marijuana remains illegal in the eyes of the federal government despite a successful ballot measure earlier this month that will decriminalize the drug under state law. Some say they’ll have no tolerance for firefighters or police officers who use marijuana.
But at least one lawyer who has advised law enforcement leaders in Massachusetts for decades says he expects unions to put up a fight the first time a chief tries to fire an employee for smoking pot off the clock.
“The unions are all geared up for it,” said Jack Collins, former general counsel for the Massachusetts Chiefs of Police Association. “Whatever city or town that it happens in first should be prepared to spend lot of money on legal fees and a couple years in court.”
The measure approved by voters Nov. 8 makes Massachusetts one of eight states doing away with state prohibitions on recreational marijuana use and has laid the groundwork for a regulatory system that will eventually oversee the cultivation and sale of the drug. Starting Dec. 15, Massachusetts residents will be allowed to carry up to an ounce of marijuana and store up to 10 ounces in their home, where they will also be allowed to grow up to six plants. Retail marijuana shops will be allowed to open in early 2018.
What’s not clear is whether employers will allow their employees to use the drug while away from work. Earlier this year, a Suffolk Superior Court judge found that a marketing firm was justified in firing an employee for testing positive for marijuana use even though she had a valid prescription for the drug under the state’s four-year-old medical marijuana law.
Christopher Feudo, a labor attorney with Foley Hoag LLP, says the recreational marijuana law provides even less protection for employees than the medical-use law, under which employees can at least argue that they shouldn’t face termination for using a prescribed drug to treat an illness.
Collins, the legal adviser to police chiefs, said that’s particularly true for police officers. He points to federal law that makes it illegal for anyone to use or possess firearms if they are an “unlawful user of or addicted to any controlled substance,” including marijuana, which remains a Schedule 1 drug under the federal Controlled Substances Act. Massachusetts law requires that police officers be legally able to use a firearm.
“Really, you can’t be a cop and be a marijuana user,” Collins said.
The Patriot Ledger reached out to several local and state union representatives to ask about their positions on recreational marijuana, but most did not respond. Terry Downing, the outgoing president of the Quincy Police Patrol Officers’ Association, declined to comment and James Machado, executive director of the Massachusetts Police Association, which represents police interests, said the organization had not yet taken a position.
Phillip Tavares, the police chief in Marshfield, said he’s putting together a general directive for officers making it clear that they are prohibited from using marijuana under their contract despite the ballot measure.
“Anyone that uses marijuana is prohibited from using a firearm, federally, so although it might be OK for the average person to use marijuana recreationally, it is not OK for police officers,” he said.
Tavares said he tests his officers for drug use when they’re hired and, under their contract, can test them again at any time. The psychoactive chemical in marijuana – tetrahydrocannabinol, or THC – can be detectable in the bloodstream for days or weeks after the drug is used.
Tavares said there are practical reasons why he doesn’t want his officers using a “mind-altering drug” like marijuana. Even if used off the clock, Tavares says, there’s always a risk that the effects of substance use at home “spills over” into work.
“You never know when you’re going to have to pull out your firearm or you’ll have to be involved in a high-speed pursuit, so it’s always a concern,” he said.
Paul Keenan, the police chief in Quincy, said he is also updating his department’s policies on drug use, something he didn’t do after medical marijuana was passed.
“We just want to make sure the officers are crystal clear on what’s acceptable and what’s not,” he said.
Andrew Reardon, the fire chief in Norwell, was less certain. He said he’s concerned about how marijuana use could affect his firefighters’ performance on the job but is still looking for legal guidance before deciding what to do about the new law.
“This is very much new territory for us,” he said. “I need employees ready to go. Regardless of their drug of choice, alcohol or cannabis, we need to make sure we’re good to go.”
If chiefs are successful in prohibiting marijuana use among police officers and firefighters, it wouldn’t be the first time public safety employees have been barred from using drugs taken for granted by other citizens. In 1988, unions agreed to a prohibition on smoking by public safety workers in a bid to keep certain disability pensions.
Since then, courts have found that the law requires police and fire departments to fire employees as soon as they’re caught smoking.
©2016 The Patriot Ledger, Quincy, Mass.
McClatchy-Tribune News Service