Marijuana ban may be keeping some from entering marine industry

In January, Vermont became the ninth state to OK recreational marijuana for adults, reflecting a steadily growing trend. And in more than half of all states, medical marijuana is legal.

But federal law considers marijuana an illegal drug, so weed is off limits for those in safety-sensitive jobs under Coast Guard and Department of Transportation (DOT) watch. Still, state initiatives are raising some concerns for maritime operators and employees.

“The Coast Guard has been abundantly clear that those federal regulations pre-empt any state laws,” said Amanda Gamblin, an employment law attorney with Schwabe Williamson & Wyatt in the Pacific Northwest, an area in the thick of the recreational marijuana world.

So the consequences are the same for someone who tests positive for marijuana as for alcohol — they face administrative proceedings and may be terminated. Applicants who use medical marijuana are denied credentials. Gamblin, whose focus includes maritime issues, isn’t hearing from any maritime clients worried that they might have to continue to employ someone who tested positive. “What they’re worried about is being able to continue to find employees,” she said. So far, they’re not seeing a lot of failed drug tests. “The bigger question is: Are young people not going into maritime jobs because they know what it means to have that license? And nobody knows the answer to that question.”

The one thing everyone agrees on, Gamblin said, is that someone can test positive for marijuana with a urinalysis when they’re not actually impaired. “That’s a huge pickle for maritime employers.”

Maine, one of the states where recreational use is legal, has created an especially sticky situation with a provision in the law effective in February that bars employers from discriminating against workers who use marijuana in their off time.

State initiatives are raising some concerns for maritime operators and employees. Creative Commons photo by Photohound

State initiatives are raising some concerns for maritime operators and employees. Creative Commons photo by Photohound

The state’s Department of Labor guidelines say an employer may prohibit use or possession of marijuana at work and discipline employees under the influence. But they “may not be able to discipline an employee or disqualify a job applicant based solely on a positive marijuana test.” However, a department spokesman said that the state doesn’t regulate or oversee testing of federally regulated employees.

Nevertheless, the problem is that the law “doesn’t address the whole drug testing issue,” said Kathryn Russo, an employment law attorney with Jackson Lewis P.C., Melville, N.Y., who specializes in workplace drug and alcohol testing. Traditionally, employers could take action if an employee tested positive no matter where they used marijuana. Now some companies have to decide if they even want to do pre-employment testing.

“Most employers are just scratching their heads trying to figure out how much risk they want to take,” she said. Others in more safety sensitive industries probably are still going to test. “It’s really a dilemma.”

DOT is very clear that they don’t allow marijuana under any circumstances, Russo said.

Maine suggests employers call their lawyers before taking any action or preparing new drug policies. The drug testing issue may ultimately get resolved in court.

THC, which produces the high, can stay lodged in fatty tissue for up to 30 days, or longer for habitual users, said Mark Meeker, assistant general counsel at American Maritime Safety Inc., a White Plains, N.Y.-based consortium that administers drug and alcohol testing compliance programs for maritime operators. Smoking marijuana leaves inactive THC, which is detected in commonly used urine tests. Blood tests can detect active THC.

“There’s always a little bit of confusion any time you have state laws conflicting with federal law, especially in an industry where you have a wide variety of age ranges represented,” he said.

The concerns they’re hearing include questions about how to handle a crewmember that has a prescription for medical marijuana. “The answer is ‘no’,” he said. “It’s still a Schedule I drug. It doesn’t matter what your state says.”  It’s a real challenge for them to find people because so many people out there are using one kind of drug or another, Meeker said.

Positive tests for marijuana rose nearly 75% — from 5.1 % in 2013 to 8.9 % in 2016 — among the more than 10 million U.S. workers tested, the annual Quest Diagnostics Drug Testing Index showed.

“Among the federally-mandated, safety-sensitive workforce, which only utilizes urine testing, marijuana positivity increased nearly 10% (0.71% in 2015 versus 0.78% in 2016), the largest ever year-over-year increase in five years,” Quest said in its most recent report. “In Colorado and Washington, the first states in which recreational marijuana use was legalized, the overall urine positivity rate for marijuana outpaced the national average in 2016 for the first time since the statutes took effect.”

Acknowledging the opioid epidemic, DOT just added semi-synthetic opioids to the list of drugs that mariners and others in safety-sensitive positions will be tested for. They currently are screened for marijuana, cocaine, amphetamines, phencyclidine (PCP), and opiates.

Starting this year they’ll also be tested for hydrocodone, hydromorphone, oxymorphone, and oxycodone, which the Coast Guard describes as the most common prescription drugs of abuse. Common names for these include OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo.

Mariners who test positive for opioids have to provide a valid prescription to the medical review officer, a Coast Guard bulletin said. If there’s a legitimate medical explanation, the employer will get a negative report. If not, the examiner will report a positive result, and the employer must take the mariner off safety-sensitive duties and notify the Coast Guard.

As for marijuana, the Merchant Mariner Medical Advisory Committee has recommended that the Coast Guard keep its ban on medical use of hallucinogens. “Performing shipboard duties under the influence of marijuana, medical marijuana or medications containing marijuana poses a significant safety risk,” the committee concluded.

About the author

Dale K. DuPont

Dale DuPont has been a correspondent for WorkBoat since 1998. She has worked at daily and weekly newspapers in Texas, Maryland, and most recently as a business writer and editor at The Miami Herald, covering the cruise, marine and other industries. She and her husband once owned a weekly newspaper in Cooperstown, N.Y., across the alley from the Baseball Hall of Fame. A South Florida resident, she enjoys sailing on Biscayne Bay, except in hurricane season.


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  5. Avatar
    Carl W Roberts III on

    The federal government does not care about safety . They care about money. I have been in the marine industry since 1996, Licenced in 2001. Marijuana is harmless. It actually is benifical, alcohol should be illegal, tobaco as well. How many people have they killed. USA my ass. What a joke.

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      Amy -Allen Co on

      Many of my coworkers were in the Navy when marijuana use was rampant. They did not describe it as “beneficial” in an industrial, shipboard environment. I’ll take their word for it.

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    I got tested some time ago and tested positive and had not even had any marijuana which in turn caused my termination from the company I worked for, I was retested at my family doctor the very next day and tested company and the union I belonged to wasn’t going to have anything to do with it and I was escorted off the property and told not to return. My call to HR and other people at the company went urine testing is not 100% accurate and many people could and will be falsely accused of using the substance.what happens then with the 0 tolerance policies?

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      Maritime Employee on

      I also was just terminated due to the USCG zero tolerance policy and my private maritime employers refusal to: consider any outside factors such as my medical records and numerous diagnosis that justify being a beneficiary of cannabis’ healing properties or the fact that the vape pen which was ultimately the cause of my termination- well, besides the fact that I refused a co-worker permission when asked to use my personal device used to administer the beneficial effects of both CBD and (low doses of) THC who then later disclosed to the Captain that I was in possession of the device ironically but forgot to mention that it was while in a public setting outside of the vessel’s parameters. My employer also failed to take into consideration that the vessel was not currently operating in US waters but rather docked for an extended period of time, failed to realize that I was also living aboard the vessel and therefore had no where else to necessary store the device while “docked” and very well would have shipped the device back home to my permanent address, discarded the device, locked the device away, consulted with my employer as to how he’d prefer that I proceed, consult with my physician, attorney, maritime safety board, boat owner or even USCG prior to the vessel embarking its operations while at sea (not docked and vacant of fellow crew specifically vessel operators), also took into consideration the Federal Laws requiring all employers to treat employees with disabilities the same as those without disabilities (or at least with respect in this case) and those ramifications such as being sued personally tens of thousands of dollars as well as the boat’s owner, take into consideration that (while Federal laws are pre-emptive) Florida’s medical marijuana state law passed is a comprehensive law, failed to evaluate the situation prior to termination or taking any other adverse actions, neglected to establish or communicate the employer’s drug policy so there is no confusion or reason for employees to claim wrongful termination, neglected to communicate that there was a zero tolerance policy that apparently also applied to any off-duty time or extended periods of time while docked and not at sea when the USCG policy would be applicable, failed to acknowledge that although the USCG has the ability to revoke the license(s) of fellow captain and crew aboard the vessel, they also have the ability to issue a written warning or do nothing and simply close the case, depending on the circumstances alleging jurisdiction by stating the elements as required by title 46 USG 7704 and the approximate time and date of the offense, failing to realize Subpart C and the USCG statement of policy and interpretation, construction of regulations so as to obtain a just, speedy and economical determination of the issues presented or finally my employer’s refusal to act in a professional manner while keeping certain sensitive information confidential rather than discussing my medical issues (in a derogatory manner) with fellow crew on board the vessel (and likely other industry professionals outside the workplace setting), refusal to treat employees equally by allowing another crew member who was terminated weeks prior for multiple alcohol related offenses in a criminal context to continue living aboard the vessel and remain on payroll (unbeknownst to the owner, intentionally hiding the employee while the owner was present on board for a scheduled meeting) and maintaining his employment after learning of his involvement and knowledge of the same circumstances that he immediately terminated me for with no consideration what-so-ever of any of the information provided by myself in response to his invasive questions and humiliating public display of verbal abuse as it pertains to my disability ultimately making me feel like a criminal for simply having a rare medical condition that he does not understand while threatening to call the police and other appropriate authorities to have me escorted from the premises while I remained calm and professional, however did give my best attempt at asking for further evaluation, equal treatment, opportunity to provide relevant documentation as he, the owner or their counterparts deemed fit including the ability for my employer to drug test me at any time despite the fact that it would be different treatment from the other crew, volunteering that my employer destroy my medical device rather than terminate me as the significance of retaining employment was dire to my current financial situation which was also complicated by my disability and more.

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    “As for marijuana, the Merchant Mariner Medical Advisory Committee has recommended that the Coast Guard keep its ban on medical use of hallucinogens.”

    This doesn’t make sense–Why would a ban on hallucinogens affect marijuana? Marijuana is not a hallucinogen. Are people really this in the dark about what marijuana is?

  8. Avatar

    Bad idea to have marijuana or alcohol on boats. Risky. Programs to help mariners stop smoking and chewing and reward them for doing so should be the next step. Not trying to justify pot smoking. Already enough stress and challenges to maritime industry without adding to it.

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      Brad Baldwin on

      Very good on stress! I have been a power troller for 20 years. Fishing many of day by myself out in the gulf of Alaska. Big water and big stress, without weed I would have died long time ago. U probably run on a 300’ ship and think that a work day consists of 12-16 hours. Lol! I have been by myself in 30’ plus for a week to 10 days in a 40’ boat built in 1908, and I am on the iron mike every hour for 10 minutes. (MAnuel bilge pump) good idea, better get rid of the weed!!!

  9. Avatar

    Look, I get it, You should not be smoking pot and working on a boat. Just like you should not be drinking alcohol and working on a boat. But come on, It’s legal to drink the night before and wake up hungover but it not legal to smoke a bone the night before, get a great night sleep and wake up feeling refreshed? Just like alcohol its effects wear off and YOUR FINE!!!!!! It’s a plant, not a drug. The only real reason its illegal is control.

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    I’m a licensed captain and I take customers fishing. My mate and I are the only people in safety sensitive positions on board and both of us are enrolled in a drug testing consortium.
    If the coast guard boards my boat and finds that one of my customers has a joint or a pipe or a pot brownie or marijuana gumies, I could lose my license for a year, face fines, have my boat confiscated, and even face prison time. I also live in a state where medical marijuana is presently legal and next to a state where it is recreational legal. What should i be doing to avoid this problem?

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