CANNABIS CULTURE – A firefighter was let go by the City of Buffalo for using his prescribed medication, but a lawyer hopes a recent change in mindset can get him back his dream job.
“We’ve seen a total revolution away from the prohibition mindsets,” says attorney Dave Holland, who is taking on the city for firefighter Scott Martin. Holland believes with this new attitude, this case is winnable and Martin can get back to working.
Martin, an Air Force veteran who served tours in Iraq and Afghanistan, had been working as an Emergency Medical Technician for the Buffalo Fire Department for 12 years before the city decided to end his career.
Martin had two positive random urine tests for cannabis, which would be expected for someone who was prescribed cannabis by a licensed physician. Martin suffers from chronic pain in his back and was also diagnosed with Post Traumatic Stress Disorder (PTSD), both conditions which the state of New York said were treatable conditions with cannabis.
“This comes with the territory of doing what you love, even if it comes as an emotional and physical cost,” Martin wrote in his affidavit.
Martin was fired because over a collective bargaining agreement. Collective bargaining means that wages and other conditions are negotiated by an organized body of employees and not an individual.
“The reason why it’s important is big employers, and particularly counties deal almost exclusively with employment related issues through collective bargaining,” says Holland. “And so rather than negotiate with each individual prospective employee they do it over a whole class of people, and it can be anywhere from several dozen to tens of thousands of employees.”
This is a problem because certain rights of an individual such as freedom of speech can be negotiated away to compensate for a larger group of people. First responders who must live in a particular community to perform their job are at higher risk of losing their rights in collective bargaining agreements.
Under New York’s Compassionate Care Act, which is the medical marijuana statute, you are deemed disabled if you have a qualifying condition, which Martin was diagnosed as having spinal issues. “He was trying all the different pharmaceutical methodologies out there, opioids and spinal injections, and they were just not bringing him relief,” says Holland, “And then it was recommended by a qualified physician that he try medical cannabis.”
Martin’s PTSD stems from his front-line combat exposure and the carnage he saw as EMT which includes gruesome car accidents, pediatric emergencies, and gunshot victims.
Coming back to the collective bargaining, Holland isn’t aware of a disability status being negotiated away, so in this sense, Martin’s case is a first. “You can’t bargain away gender, sexual identity, race, national origin, why should you be able to bargain away some of these qualifying medical conditions?”
It is surprising that this occurred in a state like New York, which has one most restrictive sets of conditions that you had to meet to qualify as a patient. Once you are qualified and registered with the program, you are deemed disabled.
Holland is asking the question of did the employer have to make accommodation on some level to allow Martin to do his job despite his disability? “In Scotts case, he didn’t require anything other than just to continue to be allowed to use medical cannabis at home at night,” says Holland.
In fact, Martin was saving the state money since opioids are covered by insurance, but medical marijuana is not.
“With regard to the city’s stance, they are taking a pretty traditional view,” says Holland. “They say Scott Martin tested positive for marijuana twice. They believe that is guaranteed right for them to for him to be terminated. We disagree.”
What makes Martin’s case so important is, this doesn’t just apply to him, but it may apply to medical marijuana patients who are subjected to collective bargaining agreements throughout the state and throughout the country.
One of the arguments the city has said is that they’re Federal Emergency Management Agency (FEMA) funding that gives them grants to do different types of safety and equipment protocols, says that they must observe and maintain the federal workplaces complying with the Federal Drug Free Workplace Act.
“However, in Martin’s case, he does not carry cannabis to work with him, he’s not coming into work impaired, he’s solely using it at night before he goes to bed to deal with PTSD and pain issues,” says Holland, “So his body is not the vessel by which an illegal drug enters the workplace. And that’s what they keep missing. He’s never violated their Drug Free Workplace Act requirement.”
One of the big problems about marijuana comes with the test itself. Unlike alcohol, which is water soluble and usually out of the system in a 24-hour period, or much less, cannabis is fat soluble, which means that you will find traces in it up to 30 days after consumption.
This means that someone who drinks alcohol every day can pass a drug test versus someone who smokes cannabis once a month will not.
“It won’t tell you what the immediate concentration amounts that are in the bloodstream or whether that person is in fact impaired,” says Holland. “So, it’s not an accurate measure at all.”
The New York Department of Labor has come out saying that those types of drug tests are not proof of impairment. “There has to be an observable set of conditions where you can see the person’s impaired in the workplace and are not able to perform their tasks,” says Holland. “So, we’re in a new era.”
Martin has never had a complaint in the workplace while being a medical marijuana patient.
Out west in California and Oregon at traffic stops, they use both a nasal swab and an oral swab. That would measure the number of nanograms per deciliter that were traceable in the body. “And that gives you a better sense within a 24-hour window of whether somebody has used and if how much is maybe present in the system,” says Holland.
“That’s one of the many things that New York in its legalization bill is putting significant money into new scientific exploration about ways you could prove impairment on the spot,” says Holland.
“Martin is seeking his reinstatement for his dream job,” says Holland. “Not only is he trained for by the fire department, but what he trained for when he was in the Air Force as a fire specialist. That’s a special calling for certain people.”
“He’s been out of work for over a year. He’s lost all his benefits; he’s lost his insurance. His child went without insurance for a while,” says Holland. “They stripped him of his dignity, for simply taking a medication that actually works, unlike the trillion-dollar pharmaceutical industry that pushes drugs on people getting addicted and has real problems with it, which were not helping him.”
The City of Buffalo did not comment on the status of Martin’s case.
“So, he wants to simply be back to where he was and left alone. And he wants his salary back his benefits back,” says Holland. “He had another 12 to 15 years he was going to work on the force. He wants to be able to do that. And they’ve deprived him of all of that, and without any sympathy whatsoever. And that’s what’s really atrocious about it.”