James E. Oldendorph, a partner at Liebert Cassidy Whitmore, is a seasoned litigator specializing in representing public safety agencies, including police and fire departments. He can be reached at joldendorph@lcwlegal.com. Phil Bui is an associate at Liebert Cassidy Whitmore. He can be reached at pbui@lcwlegal.com.

Fire departments across the state have found themselves navigating the intersection of changing attitudes to cannabis and the uncompromising demands of emergency response. What was viewed as an illicit substance just two decades ago is now seen as a product with potential medical benefits and acceptable recreational use.

Mirroring public attitudes, California lawmakers have instituted sweeping changes to cannabis laws. This has created challenges for fire departments, which must balance their mission of safety with the individual rights of their employees.

What are the legal changes?

Under California law, employers can no longer discriminate against employees based on their off-duty and away-from-workplace use of cannabis (Government Code section 12954). This includes hiring, termination, or any term or condition of employment. Nor can employers use drug screening test results that have non-psychoactive cannabis components to justify those decisions. Employers also cannot request information from an applicant for employment relating to the applicant’s prior use of cannabis.  

Public employers can still conduct scientifically valid pre-employment drug screenings that do not test for non-psychoactive cannabis components. However, they must test all applicants and show a “special need” to justify a suspicionless pre-employment drug test.

Under state or federal law or agency policy, public employers should maintain a drug-free workplace. The new law does not preempt state or federal laws requiring drug testing. Nor does it apply to exempt jobs — such as those in building and construction trades — and those hired for positions requiring a federal background investigation and security clearance. There is no such exception for firefighters or other public safety employees.

What are the implications for fire departments?

While firefighters can use cannabis off-duty, its effects can linger and potentially impact their performance during emergency calls. THC, the psychoactive component in cannabis, can affect reaction times, decision-making abilities, and physical coordination. In a profession where seconds can mean the difference between life and death, any potential impairment raises serious concerns.  

When striking this balance, fire departments must develop and enforce clear, fair policies. This may involve grappling with questions such as: How can departments effectively test for on-duty impairment rather than off-duty use? What is acceptable off-duty use? Can we send an employee to a fitness for duty examination or reasonable suspicion testing if there are signs of impairment?

What should fire departments consider?

While California has legalized cannabis for medical and recreational use, it remains illegal under federal law. This discrepancy creates a legal gray area for fire departments, especially those that receive federal funding or operate on federal land.

Departments should consider updating their policies to 1) establish clear guidelines for what constitutes impairment and how it will be assessed and 2) establish procedures for reasonable suspicion and drug tests. Departments will also want to outline the consequences of policy violations, ensuring they are fair and legally defensible. Consulting with the agency’s human resources department and legal counsel is crucial throughout this policy review process.   

Traditional urine and hair tests can detect cannabis use days or even weeks long after any impairment has subsided. This creates difficulties in distinguishing between off-duty use and on-duty impairment. As it stands, there is no established equivalent to an alcohol breathalyzer for cannabis impairment, although researchers are currently testing the reliability of breath tests.

Given these limitations, reasonable suspicion testing is critical to balancing safety and employee rights. Most departments have policies on reasonable suspicion testing, which may need updating to address the nuances of potential impairment caused by cannabis use. If a department has not updated its policies since the recent changes in law, the policies may lack sufficient objective criteria for identifying cannabis impairment. 

Updating these policies and processes not only protects employees’ rights but also protects the department from potential litigation, including allegations of unfair treatment. Departments should establish and follow criteria for identifying potential impairment, train supervisors to apply these tests fairly and consistently, and implement a fair process for addressing suspected impairment. However, changes to drug testing policies typically require negotiation with labor representatives, as they are generally considered a mandatory subject of collective bargaining.  

As laws surrounding cannabis usage develop and new testing technologies advance, the goal remains unchanged: Ensure that firefighters can perform their duties safely and effectively and maintain the professional standards that have long been the hallmark of the fire service. Staying informed of these changes and consulting with legal and human resources experts will allow departments to uphold this hallmark service for the communities they serve.