Brad Wiltshire doesn’t like to complain, but to talk to him is to understand how much pain he is in. Dystonia, the disorder that he was diagnosed with a decade ago, causes muscles in the 56-year-old’s face to fight against each other, so his voice is strained and agitated, even when he’s not.
When his employer, the Ocean City Fire Department, implemented a random drug-testing policy in 2015, Wiltshire asked to meet with his boss to discuss his medical condition and the way he had been treating it: with medical cannabis, which has been legal in New Jersey since 2010. During a meeting with his fire chief on October 9, 2015, after the new policy went into effect, Wiltshire explained that he used marijuana only while off-duty. The dystonia had never hindered his ability to fight fires, or his ability to communicate during an emergency, but searing tremors sometimes made it hurt to eat and speak, and he never knew when it would strike.
In his 20 years on the job, which included taking part in recovery efforts after 9/11, Wiltshire never had disciplinary problems and he received sterling performance reviews. He also had a recommendation from his neurologist to use medical cannabis. So Wiltshire was confident his fire chief would be fine with his medical marijuana use. He was wrong. The chief suspended him immediately pending termination, leaving Wiltshire, a slender man with graying hair, stunned and hurt. He had trusted that he was doing the right thing when he told the truth, and now he faced losing the job he loved. His boss gave him one break: He's allowing Wiltshire to use paid sick leave, with medical benefits, while the city decides his future.
“The emotional impact on me and my family — you’re almost going to make me tear up here — it’s the hardest thing I’ve ever gone through in my life. I have a disease, and it’s so fucking hard,” Wiltshire said, his voice cracking as he struggled not to cry. “It’s wrecked my family. We’re so close, but we’re so depressed. It’s such an unhappy house.”
In February 2016, Wiltshire filed a lawsuit against the city, demanding reinstatement to his job and the right to use medical cannabis during off-hours. Wiltshire is also seeking unspecified monetary damages and a ruling that the city’s refusal to permit his marijuana use be declared “in direct violation of the letter, spirit, and intent of the New Jersey Compassionate Use of Marijuana Act.” Wiltshire's case is not the first of its kind, and like a handful of others, it highlights a gaping hole in the US cannabis industry boom: Legalization is moving faster than employment rules, putting workers in dozens of professions in nearly impossible situations. They either live with pain and keep their jobs, or turn to medical cannabis and risk losing their jobs.
Employees like Wiltshire, in jobs categorized as “safety-sensitive” — which include the millions of truck drivers, police, firefighters, paramedics, people who operate heavy machinery, airline employees, and others who are responsible for people's health or well-being — face additional hurdles. Their employers almost always have zero-tolerance drug policies, leaving workers with little choice but to swap medical cannabis for opiates or other pharmaceuticals.
At a time when the opioid epidemic is ravaging US cities and towns, supporters of medical cannabis say policies like the one that got Wiltshire in trouble are outdated and dangerous. After all, tranquilizers and prescription pain pills can also affect a person's ability to do a job safely. After his diagnosis, Wiltshire was prescribed a tranquilizer that came loaded with warnings against operating heavy machinery or driving until the user knew it was safe to do so. Over time, he said, the tranquilizers stopped working as effectively, so he turned to medical cannabis. Not only did it help him deal with breakthrough pain, it also helped him sleep.
There have been at least a half dozen other lawsuits involving employees who used marijuana to help treat a medical condition, though most have involved non-safety-sensitive employees. One of the highest-profile cases involved Joseph Casias, who had been dealing with a brain tumor and sinus cancer when he worked at a Michigan Walmart in 2009. His oncologist recommended he try medical cannabis, which was legal, so he did. Then, he twisted his knee at work and needed medical care — which came with a drug test because he was hurt on the job. Ultimately he was fired. In 2010, the ACLU sued Walmart on his behalf but lost.
"No one should have to choose between pain relief and gainful employment," the ACLU wrote. "No employer should ever have to tolerate on-duty drug use or intoxication, but employees who legally use medical marijuana to treat the symptoms of painful and debilitating diseases should not be fired for doing so."
Courts generally have sided with employers in such cases. One of the first to reach the state Supreme Court was Coats v. Dish Network. Brandon Coats, who has quadriplegia, was fired from Dish Network in Colorado after testing positive for medical cannabis in a random drug test in 2010, when medical cannabis was legal. The courts held that while state law protects employees from being fired for "lawful" off-work activities such as participating in a protest, marijuana is not considered "lawful" because — despite being legal in the state — it remains illegal in the eyes of the federal government.
Cristina Barbuto, a Massachusetts woman with Crohn's disease, sued Advantage Sales and Marketing after she was terminated for her legal medical cannabis use after one day on the job. Her case was initially dismissed, and she has appealed. The state’s highest court heard the case in March, and a decision is expected this summer.
If workers in these kinds of jobs can't win the right to use legal cannabis, the odds are much worse for safety-sensitive employees. Even if employers relaxed rules to permit off-duty marijuana use, it would not necessarily help employees. THC, the component of cannabis that causes the high, is detectable in urine up to a month after use, and urinalysis is the most common method of drug-testing workers.
“We shouldn’t be legalizing a drug we don’t fully understand,” said Jake Nelson, director of Traffic Safety Advocacy and Research at AAA. “If you’re impaired by marijuana, you’re less likely to be able to evade a crash. You are slower to respond to get out of the way of a driver coming down the way towards you. It will contribute to a crash, whether you are responsible for a crash.”
In his lawsuit, Wiltshire said he “never brings his prescription medication to the workplace, never takes that medication during his assigned work hours, and has never reported for duty while impaired by any medication.”
“Nevertheless, THC is present in my urine. So the question is, when there’s presence in urine, is there impairment? Obviously there’s no science to show a correlation between urinalysis and impairment,” Wiltshire told BuzzFeed News.
Doug Bergen, Ocean City’s public information officer, refused to comment on pending litigation, but in a March 2016 brief in response to Wiltshire’s suit, the city said no part of the state’s medical cannabis law “compels the City to employ a fireman who tests positive for marijuana in the workplace as a result of legal, off-duty use.” “It is fortuitous,” the city wrote in the brief, that no members of the fire department or public were “seriously injured” while Wiltshire worked “while medicated.” “Any argument that the lack of an incident during this period speaks to the Plaintiff’s ability to function while medicated is fallacious, like the argument that a drunk driver who has not been in a crash can safely drive,” the brief said.
Almost a dozen states now have some employment protections for medical marijuana patients, including Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island. The fact is, as medical marijuana expands nationwide, more safety-sensitive employees are using cannabis. According to its annual Drug Testing Index, Quest Diagnostics, a lab frequently used by employers to test their workers, found that cannabis-positive urine tests rose almost 10% among federally mandated safety-sensitive workers from 2015 to 2016, the sharpest hike in five years.
Amanda Baer, a Massachusetts employment lawyer, advises employers to rely on their own judgment — asking themselves if a worker seems visibly stoned or impaired — rather than lab results if an employee tests positive for THC. “That could be more reliable than a drug test that might show activity from a few days ago,” said Baer.
While he awaits the outcome of his suit, Wiltshire says each day makes him a bit more stir-crazy. He’s in the purgatory of not yet being retired but not working, and he’s got too much time to worry. His 16-year-old daughter, who makes her father immensely proud with her high grades, is headed off to college in a couple years, and he questions how he’ll pay for tuition if he is ultimately fired. He recently had a few teeth removed because of damage caused by his dystonia, and he wonders whether he should spring for the more expensive and more comfortable implants, or get the cheaper dentures, given his economic uncertainty.
Congress mandated cannabis screenings for safety-sensitive workers in 1991 after a speeding Conrail commuter train crashed into a passenger train in Baltimore, killing 16 people and injuring 174. The National Transportation Safety Board blamed the crash on the Conrail engineer’s “impairment from marijuana.” In the decades since, safety-sensitive employees with debilitating conditions have been forced to choose from undesirable options: Accept pharmaceutical medications over medical marijuana, use marijuana and face possible firing, or abstain from both and live with symptoms. Jeremy Renda, a 43-year-old lieutenant with a fire department in New Mexico, went for the third alternative. He fractured his femur after he fell about 15 feet and landed on a rock while skiing in Taos in 2008. When he obtained a medical cannabis certification from the state in 2011, he was honest with his boss about it.
“I brought it to them. I wanted to know: Are you going to fire me? And am I going to be subject to disciplinary action?” Renda said. The department, citing federal law, said Renda could face disciplinary action and possible termination if he tested positive for THC.
“We’re being discriminated against, and it hinders our ability to treat ourselves. And a lot of people just revert to alcohol. It’s very destructive,” Renda said.
Steve Wirth, an employment lawyer who represents emergency medical and public service agencies across the US, thinks the discrimination allegation could hold water. The Americans with Disabilities Act, Wirth said, requires employers to give “a little special treatment” to the person who has a bona fide disability, and to provide “reasonable accommodation.” Cannabis should be included in that, along with other pharmaceuticals, Wirth said.
“I don’t see medical cannabis, from a public safety workplace, much differently than I see the use of hydrocodone, or codeine, and the other traditional painkillers, used by people in public safety when they’re off-duty,” Wirth said. “So employers have to be savvy about this stuff and make sure they’re not just having a knee-jerk reaction.”
Wirth’s point has played out in Canada, where medical cannabis is national law and some employers go so far as to cover the costs of it. The Nova Scotia Human Rights Commission ruled this month that one employer discriminated against an employee by not doing so.
And recreational laws seem to be pushing employers to examine their policies too, but for a different reason: employee retention. Consider ski resort towns, said Anne Montera, who is based in Colorado and is vice chair of the National EMS Advisory Council. Regular cannabis tests can shrink the number of qualified job applicants in a big way. She said that since legalization, some employers have moved away from random drug tests in favor of only testing people they suspect of being under the influence. “If it’s positive, they go from there,” Montera said. But a positive cannabis test is not necessarily cause for immediate termination.
It’s not just physical pain that drives some workers to use medical cannabis. Many safety-sensitive employees are first responders, and they’re often exposed to traumatic events.
And while research on cannabis’s effectiveness in treating PTSD has so far been inconclusive, those with symptoms of PTSD — sleeplessness, mood swings, and anxiety among them — often find cannabis better than pharmaceuticals at alleviating them.
“In my career, I can’t begin to tell you how many deaths I have seen,” said Wiltshire. He was one of the first on the scene in 1999 when a mother and her 8-year-old daughter were thrown to their deaths from the Wild Wonder roller coaster at Gillian’s Wonderland Pier in Ocean City.
Since 2007, 24 states, along with Puerto Rico, Guam, and Washington, DC, have passed medical marijuana laws or amendments to allow people with PTSD to use medical cannabis.
New Mexico was the first to do so in 2007, but that didn’t protect Donna Smith, who was on the receiving end of a zero-tolerance cannabis policy almost two decades after she says she was sexually and physically assaulted while in the military. She was prescribed psychotropic medication for her PTSD, but Smith said the drugs made her feel “paranoid and hypervigilant.”
So she started legally using medical cannabis, most of the time taking cannabidiol (CBD) capsules, which produce no high, to stabilize her mood. In February 2014, Smith accepted a job as a physician’s assistant at Presbyterian Healthcare Services. She submitted a urine sample for the drug screening and started work, but then, her new employer called and asked if she had an explanation for failing the drug test.
“I said, ‘I do. I’m actually part of the medical cannabis program here in New Mexico. And it’s the only medication that I take,’” Smith, now 43 with a slight build and short-cropped hair, recalled. She was asked to submit documentation, including a copy of her medical cannabis card. She did, and a few minutes later, she got another call telling her she was fired. Smith sued, but lost.
Presbyterian Healthcare Services echoed a sentiment that other employers have stuck with: “The use of medical marijuana is not recognized by federal law and Presbyterian has a mandate under federal law to provide a drug free workplace,” it said in a statement in response to the lawsuit.
Smith knew it would be nearly impossible to find another job in the medical field if potential employers learned she’d been fired for cannabis use, so she retired early and moved to Washington, where she has easy access to cannabis. Today, Smith lives with her wife and her pit bull service dog in an RV, traveling and exploring the Pacific Northwest.
“It just minimized me, and made me feel like I had no value. You’re at the bottom of the earth, despite being in the military, serving honorably, being the victim of sexual assault,” Smith said of being fired. “None of that matters. You’re just a big piece of shit, and you’re a drug addict, because you use cannabis and it’s against federal law.”
Last month brought signs of a possible shift in the courts when a Rhode Island Superior Court judge, Richard Licht, sided with Christine Callaghan, a University of Rhode Island student with migraines who applied for an internship at Darlington Fabrics. The company retracted the offer after they found out about her marijuana use. Callaghan sued, alleging discrimination, and the judge agreed, issuing a ruling that could be referenced in future cases.
“It is sufficient to show that Defendants discriminated against a class of disabled people — namely, those people with disabilities best treated by medical marijuana,” Licht wrote, adding that he anticipates an "onslaught" of lawsuits around lawful cannabis use.
At the top of the 32-page ruling, centered and in italics, he quoted the famous line from a 1967 Beatles song: “I get high with a little help from my friends.” ●