Navigating Maritime Operator Concerns After Marijuana

Legalization September 14, 2016

Oregon Medical Marijuana Act (OMMA)

OMMA (1998) – authorized use of marijuana for medicinal purposes.

– No job protections

– Employers do not have to accommodate employees lawfully using under

OMMA because marijuana is illegal under federal law (Emerald Steel

Fabricators)

– Court did not address use outside of the workplace because it didn’t need to

because of federal law

Measure 91 – Legalized Recreational Use

Measure 91 passes in November 2014 and took effect July 1, 2015

– Allows personal use and possession of recreational marijuana for individuals

21 and over

– Allowed 8 oz. and up to 4 plants per residence

– Allowed to possess up to 1 oz. in public

– Cannot consume in public

– Cannot take across state lines (federal law)

– No job protections

Other States and Laws

25 states (and Washington D.C.) authorize marijuana for medical purposes

Four states (and Washington D.C.) allow recreational use (Washington, Oregon,

Colorado, Alaska)

Some states have “off-duty conduct or activities” laws

– Generally prohibit employers from terminating an employee for engaging in

lawful activity outside of the workplace (Coats v. Dish Network – Colorado)

– Oregon does not have an “off duty conduct” law

Federal Law Controlled Substances Act

– Marijuana is an illegal Schedule 1 drug

– Federal law does not recognize differences

between medicinal and recreational use

Drug and Alcohol Rules are “Safety Regulations”

• The regulations requiring chemical drug and alcohol testing for mariners are intended to “. . .discourage drug and alcohol use by commercial vessel personnel, reduce the potential for marine casualties related to drug and alcohol use, and enhance the safety of the Maritime Transportation Industry.” Federal Register Vol. 53, No. 224.

DOT Policy does not allow for recreational pot use

• “We want to make it perfectly clear that the state initiatives will have no bearing on the DOT’s regulated drug testing program. The DOT’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.”

• Issued in relations to ship captains, among others.

The USCG also issued an Anti-Pot “Safety Bulletin”

• USCG published a “Marine Safety Information Bulletin” titled “Recreational and Medicinal Marijuana Use Policies for Maritime Transportation Workers” on January 14, 2014, referencing the DOT Compliance Notice.

• The Bulletin was intended to “ensure that mariners, marine employers, Medical Review Officers and the public are knowledgeable of the continuing prohibition of marijuana use by those serving in safety-sensitive positions in the maritime transportation industry.”

USCG Safety Bulletin cont.

• “It is important to note that marijuana remains a drug listed in Schedule I of the Controlled substances Act. It remains unacceptable for any safety-sensitive employee serving in the maritime industry and subject to drug testing under the DOT’s drug testing regulations to use marijuana.”

• “Furthermore, mariners/employees that hold a Merchant Mariner Credential and fail a drug test due to recreational or medicinal marijuana usage will be subject to administrative action against their credential in accordance with federal regulations.”

Violations of “Safety Regulations” create liability

• Whenever you have a violation of safety statue or regulation on a vessel, you are going to run up against the Pennsylvania Rule.

The Pennsylvania Rule

• Under the Pennsylvania Rule, a vessel that violates a statute or regulation must show “not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been” one of the causes of the collision or accident. The Pennsylvania, 86 U.S. (19 Wall.) 125 (1873).

Safety violation must relate to the accident

• The Pennsylvania Rule is meant to encourage strict compliance with maritime regulations pertaining to the safe operation of ships.

• The courts have noted that the Pennsylvania Rule is ‘a drastic and unusual presumption.’ Therefore, there must be proof that under the circumstances there was a reasonable possibility that compliance with the regulatory standard would have prevented the accident in order for the presumptions to apply.

Marijuana and the Penn. Rule

• Martin v. SMAC Fisheries, ‎LLC, 2012 U.S. Dist. LEXIS 57553 (D. Alaska 2012): Plaintiff was injured when trying to dock defendant’s boat. He asserted that his own pot aboard the owner’s vessel created the basis for application of the Pennsylvania Rule.

• The court noted that “plaintiff wishes to bootstrap his own possession violation to force the shifting of liability to the defendant without first proving any causal connection.”

• There must be “a threshold causal connection between the violation and the injury before the [Pennsylvania] Rule will apply.”

• The Court declined to apply the Rule because no connection was established between the bag of pot in the plaintiff’s gear below deck and the allision.

How will courts view positive tests?

• Exxon Shipping v. Exxon Seamen’s Union, 993 F.2d 357 (3rd Cir. 1993): A seaman was fired when his post-incident drug test showed low levels of cannabinoids (lower than USCG limits but higher than Exxon’s own policy limits).

• The court noted “there was no evidence that [plaintiff] had used or possessed drugs on company business or premises [because] he had returned from vacation nine days before testing and credited testimony from Exxon’ expert stated that an individual might be expected to test positive for marijuana fifteen days after using it.”

• Regardless, Exxon’s zero tolerance policies had been violated so the court concluded the seaman’s termination was proper.

• The court did not discuss whether the positive test would trigger application of the Pennsylvania Rule in this employment case.

How will courts view positive tests?

• In United States v. O’Keefe, 2005 AMC 2805, a tug captain killed his wife when he rolled his boat in the Mississippi River.

• Captain O’Keefe claimed that he had used cocaine 3 or 4 days prior while he was off duty.

• The court noted that the levels in his blood test indicated that he had used that day and that he was “under the influence” at the time of the accident.

• The positive test created a presumption of fault against him, which he was unable to overcome.

TESTING, TESTING

• A layman’s guide to marijuana tests

do drug tests detect current impairment from marijuana?

“There is no simple answer to this question. Detection time depends strongly on the kind and sensitivity of the test employed; the frequency, dosage, and last time of use; the individual subject's genetic makeup, the state of one's metabolism, digestive and excretory systems; and other random, unknown factors. “

California NORML Guide to Drug Testing

Types of Testing

• Urine

• Blood

• Saliva

• Hair

• Breath (coming soon)

• Sweat (uncommon)

Drug Testing Issues

• Data is mixed on lasting impairment long after use

Drug and Alcohol Policies - Zero Tolerance

• When to use zero tolerance:

• Some federal contractors and all federal grant recipients must follow Drug Free Workplace Act.

• Safety sensitive positions • Avoid negligence claims

• Certain industries like maritime, manufacturing, drivers

• Can use zero tolerance for certain departments and divisions and not others

Drug and Alcohol Policies - Zero Tolerance

• What to include: • Move away from “under the influence” policies and use a “no detectable

amount” policy

• Any positive urine test results in termination

• May not need to bother with blood tests or other tests

• Use random testing

Drug and Alcohol Policies Generally

• Not “Abuse” Policies, say “Drug and Alcohol Policy” or similar name

• Clearly state that it covers drugs illegal under local, state, or federal law

• Explicitly include marijuana or any related substance

• Include prescription drug policy

• Notice to supervisor?

• Include notice that blood tests or other invasive tests may be used (leaves open as a possible accommodation if the Washburn issue arises again)

CAN I STILL ENFORCE A ZERO-TOLERANCE DRUG POLICY WITH

RESPECT TO MARIJUANA?

Alcohol is legal, so how is marijuana any different?

As long as my employees don’t come to work impaired, I don’t want to interfere with their personal life.

What’s the harm?

What about employees who have a medical marijuana card for a

disability?

What impact will this have on my federal contracts?

WHAT ARE MOST EMPLOYERS DOING?

How should I address this in my drug and alcohol policy?

What should I be communicating with employees?

What will happen if we’re able to test for

impairment?

What will happen if Oregon adopts an off-duty conduct law?

What will happen if they change the schedule at a federal level?

Questions?

“We don’t make regulations to prevent something from happening.

We make regulations to prevent something from happening AGAIN.”

The worst Cocaine epidemic was in the 1890”s

Not only legal but encouraged by employers

Created millions of addicts

The Pure Food and Drug Act was initially concerned with ensuring products were labeled correctly.

efforts were made to outlaw certain products that were not safe and products which were safe but not effective.

• Attempt to outlaw Coca-Cola in 1909 because of its excessive caffeine content!! Caffeine had replaced cocaine as the active ingredient in Coca-Cola in 1903.

• Judge found that Coca-Cola had a right to use caffeine as it saw fit. Coca-Cola eventually lost when the government appealed to the Supreme Court. It reached a settlement with the U.S government to reduce the caffeine amount.

• Now we have Red Bull’s and quad shot espresso drinks!

- In addition to caffeine, the PFDA required that alcohol, cocaine, heroin, morphine, and cannabis, be accurately labeled with contents and dosage. -Previously many drugs had been sold as patent medicines with secret ingredients or misleading labels. - Cocaine, heroin, cannabis, and other such drugs continued to be legally available without prescription as long as they were labeled.

- The PFDA of 1906 is cited by drug

reform policy advocates such as James

Gray as a “successful model: for re-

legalization of currently prohibited

drugs by requiring accurate labels,

monitoring of purity and dose, and

consumer education.

Congress passed the Harrison Narcotics Act, banning the nonmedical use of cocaine, as well as other drugs, like marijuana.

Cocaine and marijuana’s long career as outlaws had begun.

September 1971

--Operation “Golden Flow” goes into effect to attack habits of U.S. servicemen in Vietnam.

May 1981

-- USS Nimitz: an EA-6B Prowler crashed on the flight deck, killing 14 crewmen. Of the 14 dead crewmen, 6 had illegal drugs in their system.

As a result of this incident, President

Ronald Reagan instituted a "Zero

Tolerance“ drug policy across all of the

armed services, which started the

mandatory drug testing of all U.S.

service personnel.

September 1986

President Ronald Reagan signed Executive Order 12564, requiring all federal employees to refrain from using illegal drugs, on or off-duty,

as a condition of federal employment. 1988 -- Congress passes the Drug-Free Workplace Act

which apply to executive agencies of the federal government, the uniformed services, and contractors or service providers under contract with the federal

government.

January 1987

-Chase, Maryland; Amtrak passenger train slams into a cargo train. 14 people are killed and 160 injured. The cargo train missed the signal to stop and pulled in front of the passenger train.

-The crew of the cargo train tested positive for THC. The engineer did 4 years in federal prison.

In 1991, prompted in large part by this

crash, Congress authorized mandatory

random drug-testing for all employees

in "safety-sensitive" jobs in all

industries regulated by the Department

of Transportation (DOT) including

trucking, bus carriers and rail systems.

August 1991

5 people are killed and more than 200 injured

when a southbound train derails going over

a switch near Union Square. The motorman,

Robert Ray, was drunk and going more than 40

mph in 10 mph zone and is later convicted of

manslaughter and sentenced to 15 years in

prison.

September 1993

The Big Bayou Canot train wreck was the

derailing of an Amtrak train on the Big Bayou

Canot bridge in Mobile, Alabama. It was caused

by displacement of a span and deformation of the

rails when a river pilot, Willie Odom, pushing a

tug/barge unit became disoriented in heavy fog

and collided with the bridge eight minutes earlier.

Casualties were 47 killed and 103 injured.

The NTSB advised:

-Amend 46 CFR 4 and 16 to specify the time limits, not

to exceed 8 hours, within which employers must conduct

post accident alcohol testing.

-Require that radar be installed on board all uninspected

towing vessels except those that operate within very

limited areas and upgrade licensing standards to require

persons hold a radar observer certification, if they stand

navigation watch on radar-equipped towing vessels.

-Require that radar be installed on board all uninspected

towing vessels except those that operate within very

limited areas.

-Require that all bridges vulnerable to impact by

commercial marine traffic bear unique,

readily visible markings so that waterway and bridge

users are better able to identify

bridges involved in an accident when they report such

accidents to emergency responders

-Require that all uninspected towing vessels

carry appropriate navigational devices,

including charts, in the wheelhouse.

-Promote the development and application

of low-cost electronic charting navigation

devices for inland rivers.

October 2003

the New York/Statin Island Ferry Andrew

J. Barberi crashed full-speed into a

concrete pier at the ferry terminal. Eleven

people were killed and 165 injured

It was determined the ferry Pilot had lost

situational awareness while at the ship's

controls after taking the painkillers tramadol

and Tylenol PM, both of which can cause

drowsiness as a side effect.

According to the NTSB investigation;

1. The ferry Pilot was unable to explain

what happened.

2. There was “possibly” a second person in

the pilothouse, reading a book, who

“didn’t see what happened either”.

November 2007

The container ship Cosco Busan, struck

Delta Tower of the Bay Bridge in San

Francisco in thick fog spilling 53,569 US

gallons of bunker fuel.

Investigators found that First Class Pilot,

John Cota; was impaired from his use of

prescription drugs rendering him unable to

use onboard radar and electronic navigation

charts correctly.

The NTSB determined the following probable

causes of the accident (not all causes included)

- The pilot's degraded cognitive performance from

his use of prescription medications, despite his

completely clean post accident drug test.

-The U.S. Coast Guard's failure to provide

adequate medical oversight of Cota, in view of

the medical and medication information he had

reported to the Coast Guard.

-Mr. Cota served 10 months in Federal Prison

as a result of the oil spill.

The Ontario Provincial Police showoff more than $79

million worth of drugs including heroin, that criminal

organizations have tried to sneak into the country. All of

the narcotics were shipped into the province from India,

Pakistan, Peru, and Guatemala

February 2015

In Australia, more than 30 criminals had been

convicted over the world’s biggest ecstasy bust,

which involved the AFP seizing 15 million pills

hidden inside tomato tins shipped from Italy to

Melbourne by the Calabrian mafia.

Two Canadian women and a 63-year-old man,

arrested on their cruise ship after the AFP and

sniffer dogs found a total of 95kg of cocaine in

their cabins. All are facing life in prison after the

£17.5m drug bust in Australia

The bust was run by the Australian border

force and federal police, who thanked the

US Department of Homeland Security and

the Canada Border Agency for helping to

identify the three as "high-risk passengers"

among the 1,800 on board.

Improperly written company drug policies

Improperly executed drug policies

Improperly initiated tests;

“Private employers who are required by the

government to conduct mandatory testing, are acting as an arm of the government (deputized), and the fourth amendment rights to unreasonable search and seizure apply”

Random test, in order to meet this requirement

must be; “selected‎by‎a‎scientifically‎valid‎

method with no human intervention”

Reasonable Cause test must directed based on;

1. Reasonable and articulable belief

2. from direct observation by a person with

training

3. And preferably two supervisors if possible

46 CFR 4.03-2 One or more deaths. An injury requiring professional medical treatment beyond first

aid and when person is a crewmember, the injury renders person unfit to perform routine vessel duties.

Damage to property in excess of $100,000 Actual or constructive total loss of an inspected vessel. Total loss of any self-propelled vessel of 100 or more gross

tons. Discharge of 10,000 or more gallons of oil into navigable

waters. Discharge of a reportable quantity of a hazardous substance into navigable waters or the environment.

* Serious incidents require immediate drug (urinalysis) and alcohol (breath) testing by the individuals marine employer

(46 CFR 16.240 & 33 CFR 95.035) .

Based on OSHA definitions

Pain or sickness caused strictly by an illness, such as communicable illnesses (e.g., colds and flu), allergic reactions, food poisoning, heart attack, stroke, or other pre-existing medical condition, is not considered an injury and does not fall within the definition of this regulation.

However, a physical injury that requires medical treatment beyond first aid incurred as a result of an illness is an injury. Example is fainting and then falling and breaking your arm as a result of dehydration.

Engaged or employed on board a vessel –

Includes individuals who employed on board a vessel to carry out work associated with shipboard operations, cargo operations, etc..

Persons engaged in addition to the vessel’s crew, includes, but is not limited to:

Pilots, hospitality staff, “temporary workers” such as visiting technicians, riding crews, contractors, divers, personnel in support of commercial diving operations, and persons supporting Outer Continental Shelf activities

Shipyard and harbor workers/stevedores and longshoremen are generally excluded from reporting unless…

the stevedores or longshoremen were injured or killed as a result of a vessel casualty such as allision or an equipment casualty such as shipboard cargo conveyor belt accident.

The vessel Zim Mexico III bow flare struck the crane when docking, collapsing the crane and

killing the operator