Page 23: of Marine News Magazine (February 2019)
Dredging & Marine Construction
The doubling of the minimum testing rate poses not just additional costs, but signifcant logistical challenges and operational disruptions for maritime employers. Our review of the relevant data leads us to conclude that any determination as to the value of additional testing is best left to the individual employer.
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As referenced above, the primary driver behind the in- crease in positives tests – and the regulatory obligation to double testing rates – is marijuana.
Our industry is faced with a vexing problem: while in- creasingly legal under state law, marijuana use remains il- legal under federal law. For the U.S. mariner, however, the devastating impact of a marijuana positive on his docu- ment, license, and employment status cannot be evaded based on a state law defense.
AMS encourages all maritime employers to provide the following notice to their shipboard employees, both within published policies and as a standalone notifcation:
Marijuana is a controlled substance under federal law. For all shipboard employees, it shall not be deemed an acceptable defense, in response to a verifed positive for marijuana, that the marijuana or THC-based product was consumed in a state or foreign jurisdiction permitting the medical or recreational use of marijuana. A verifed positive for marijuana will result in termination and license/document revocation proceedings.
Note that we reference “shipboard employees.” Though it is a recipe for confusion and cries of unfairness, maritime employers in several states may have to maintain employ- ment policies that discriminate between shipboard em- ployees, who must abstain from marijuana consumption, and shoreside employees, who may have a state law right to engage in such consumption provided that they do not come to work in an “intoxicated” state.
The rate of state legalization of marijuana has outpaced the states’ efforts to educate the public with respect to the impact of marijuana use on health, safety, and employment.
Employers need to take up the slack, and the message must be clear: if you want to work in the U.S. maritime industry as a shipboard employee, you must never use marijuana.
That is, until federal law changes.
Lee Seham is a partner in the labor/employment law frm of Se- ham, Seham, Meltz & Petersen and General Counsel of the non- proft drug testing consortium American Maritime Safety, Inc.
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