Vermont medical cannabis user challenges urine-test regime for workers

Posted on April 8th, 2023 by Bill Weinberg and tagged , , , , , , , , , , , , .

medical marijuanaRights for medicinal cannabis users in the workplace have not kept pace with the law in states that have embraced medical and even “recreational” use. Now a case in Vermont may push state and federal authorities alike to close the loopholes that allow workers to be dismissed—and denied unemployment insurance—for using state-legal medicine.

It wasn’t supposed to happen in Vermont—a bastion of green social-libertarianism which became the first state to legalize cannabis by vote of the legislature in 2018, and which has had a medical marijuana program in place since 2004.

But on Jan. 9, Ivo Skoric of the town of Rutland was dismissed from his job at the local transportation district for testing positive for cannabis—despite the fact that he’s a registered medical user. And despite the fact that his job was to clean the buses, not to drive them.

“My job is in the garage,” Skoric tells Cannabis Now. “Bus maintenance. I clean them, wash them, fuel them, park them for tomorrow.”

Parking within the terminal yard, in the dead of night with nobody else in sight, was the extent of his time behind the wheel.

Nonetheless, the Marble Valley Regional Transit District was obliged to let him go after he failed a urine test mandated by the federal Department of Transportation.

Now fighting to get his unemployment claim recognized, Skoric says he will not be content with that. He wants his job back, and the DoT regulations brought into conformity with his rights under state law.

Worker fights the bureaucracy
An immigrant from Croatia, Skoric fled his native land just ahead of the wars that rocked ex-Yugoslavia in the 1990s. He settled in Vermont partially because of his love of the outdoors—hiking, rock-climbing, snow-boarding. But osteoarthritic injuries contribute to chronic pain that is relieved by cannabis. He’s been enrolled in the state medical marijuana program for some 10 years. And he pledges to rouse every level of state and federal power in defense of his right to medicate and still keep his job.

First, Skoric wrote US Transportation Secretary Pete Buttigieg, urging that the text of the relevant DoT regulations “needs to change.”

The relevant text of DoT Rule 49 reads:

There can be a legitimate medical explanation only with respect to a substance that has a legitimate medical use. Use of a drug of abuse (e.g., heroin, PCP, marijuana) or any other substance...that cannot be viewed as having a legitimate medical use can never be the basis for a legitimate medical explanation, even if the substance is obtained legally in a foreign country.

Skoric stated in his letter to Buttigieg:

I obtain the “substance” legally state, and I find offensive the contentious statement that it is a “drug of abuse” and that it “cannot be viewed as having a legitimate medical use”. I believe it is nonsense rooted in racist prejudice and decades of political demonization with no basis in science...

In my 42 years of smoking it responsibly and within therapeutic doses, I can report that it only lifts me up. I am a 58 year old male with an artificial knee, artificial hip, partially torn Achilles, reconstructed shoulder, fused cervical vertebrae, chronic osteoarthritic pain, and bipolar depression, who with a little help from cannabis can miraculously do push ups and pull ups, snowboard, rock climb, or mop and scrub 20 city buses [in one] night...

He added that if he had tested positive for pharmaceuticals such as Lamictal, Latuda or oxcarbazepyme—all of which he had been prescribed by doctors, to no avail—it wouldn’t have been an issue. Both his medical marijuana card and commercial drivers license were issued by the state of Vermont—but holding the latter means submitting to a urine test for cannabis under federal law.

The law in question is the Omnibus Transportation Employee Testing Act of 1991, which mandates urine-testing for all holders of commercial drivers licenses. This expanded on the Drug-Free Workplace Act of 1988, which mandates such testing for employees of institutions that receive substantial federal grants or contracts. The relevant federal agencies have promulgated regulations to implement these laws.

The Implementation Guidelines for Alcohol & Drug Regulations of the Federal Motor Carrier Safety Administration (FMCSA, the responsible DoT agency) state that the federal regs “preempt any State or local law, rule, regulation, or order.”

Skoric has also filed a complaint of employment discrimination with the DoT.

The complaint, filed through the FMCSA website, states:

I am discriminated against by the DoT because of the medication I use responsibly. I am a Medical Marijuana patient in the State of Vermont, which, like 36 other states (more than ¾ of the union), recognizes medical value in marijuana. In a functional federation I would be protected by the federal law. I am neither impaired nor lacking in performance. And my employer clearly stated that they would not terminate me, if they were not forced by the DoT rules.

In verbiage perhaps too frank for bureaucratic purposes, Skoric added: “It used to be that people in the US were valued for hard work. Now they are valued for their piss.”

He received a reply saying the complaint falls “outside the scope of this feedback center.”

He also wrote Vermont’s Sen. Peter Welch, reminding him of his own position, stated when he was in the House of Representatives in 2018, of respecting state rights on the cannabis question. Welch said in October of that year: “[A]t the federal level, we should pass legislation allowing for medical marijuana. That should be a national policy—I don’t believe that the government should get between a doctor and a patient when it comes to prescribing a medication...that will alleviate pain, like marijuana... So I fundamentally believe that at the federal level we should respect states’ decisions on marijuana, whatever their policy may be.”

Welch, who sits on the Senate Transportation Committee, actually replied with a hand-written letter, stating: “I have long supported medical marijuana. That should also include not being penalized by testing requirements that undercut its medical use.”

Of course Skoric also wrote Vermont’s other senator, Bernie Sanders, who wrote back that while cannabis remains a Schedule I substance under federal law, he has called upon the Biden administration “to re-evaluate marijuana’s scheduling.” Sanders added: “I hope that this process will result in the descheduling of marijuana, as it has no place on the same schedule as a drug like heroin.”

Skoric also filed a complaint with the US Equal Employment Opportunity Commission (EEOC), but the case was rejected summarily. He received an email from EEOC’s Boston office stating: “[B]ecause marijuana is considered illegal under Federal law, an employer would not violate the Americans with Disabilities Act for discharging an employee who tests positive for marijuana, even if it was lawfully prescribed under state law. You should continue to pursue your complaint with the Vermont Attorney General’s Office, who will make a determination as to whether your employer violated Vermont State Law.”

Yet when he did so, a representative of the state Attorney General’s Office wrote back saying: “As you likely know, the federal law you don't agree with is not something that we have jurisdiction over... [O]ur office would not have jurisdiction to investigate a complaint due to the federal law in place.”

“Nobody has the jurisdiction, neither the state nor the feds,” Skoric complains wryly to Cannabis Now. “Should I write next to the UN Special Rapporteur on Human Rights?”

Unemployment claim pending
Skoric is also fighting the bureaucracy over his claim for unemployment insurance. On March 22, after 10 weeks of deliberation, the state Department of Labor disqualified his claim on the grounds that he had been dismissed for “misconduct.”

Skoric is aghast at this. “I say there was no misconduct,” he insists. “Why do we even have medical marijuana cards in that case? I am disabled and I take medication legally prescribed in this state.”

His appeal is currently pending before an administrative law judge. Skoric is considering a class action suit against the Labor Department if the disqualification is not overturned.

Some 10 years ago, Skoric also applied for disability insurance with the federal Social Security Administration. He relates: “They just put it on hold because my SGA [substantial gainful activity] was too high. Well, now it won’t be! The irony of course is that I am perfectly capable of doing my job, and my employer knows and accepts that, but they are forced to terminate me because they are subject to federal DoT rules. I see this as a violation of state rights, and discrimination against me as a disabled individual.”

He’s also considering launching suit against the Vermont Cannabis Control Board. “If the state gave me the right to use cannabis medically, they have a responsibility not to make me unemployable by that decision.”

Challenging the stigma
Although he has for many years led a quiet life in Vermont, working a proletarian job and raising a son, Skoric is no stranger to political activism. In his youth, he was a cyber-punk dissident under Yugoslavia’s old communist regime, opposing nuclear power and the like. Faced with persecution for these activities, he left for America in 1989. Still on the outs with the ethno-nationalist regime that came to power in independent Croatia in 1991 (with many of the old communist apparatchiks merely putting on new hats), Skoric filed an asylum claim that year. He won asylum status in 1997, and moved from New York City to Rutland in 2005.

Skoric has already formed an advocacy group to fight for his new cause on the national level, called Rational Acceptance of Curative Cannabis in Occupational Obligations Now (RACCOON). He is still assembling an advisory board.

While acknowledging that cannabis affects everyone differently, Skoric rejects the assumptions at the root of federal policy. “I simply don’t understand where these myths are coming from that weed is impairing,” he says. “I snowboard high. How is that possible? I get energized by its relaxing and mellowing effect. And I am extremely experienced at micro-dosing. That’s why they prescribed it to me. I have true medical benefits from it, that doctors couldn’t achieve with pills without causing more impairing side effects.”

He says that after 40 years of smoking, he has learned how to calibrate for precisely the desired effect—something that can’t be done with pills.

“I scale rocks high. Common wisdom would have me long dead from losing balance and falling off a cliff. How can they continue to sell that crappy spiel?”

Skoric accuses the media of complicity in perpetuating this misconception. For instance, an October 2016 crash by a motorist driving the wrong way on Interstate 89 through Vermont left five teens dead. The driver, Steven Bourgoin, ultimately got 30 years to life in prison. But the headlines emphasized that he had tested positive for THC. It fell to local alternative media outlet VT Digger to point out that he had also been on fentanyl and prescription sedatives.

“That was a joke here for some time,” Skoric recalls. “It is quite clear THC was not the main cause of his impairment.”

Skoric sees this double standard as a holdover from the ugly origins of cannabis prohibition.

“Cannabis was used as a medicine until the vicious demonization of weed started during the jazz and Reefer Madness era, primarily driven by racial prejudice,” he says. “The federal law is still in the thrall of the stigma that Hoover used to terrorize the counter-culture movements of the 1960s. And despite it now being legal in 21 states, on the federal level, it gets only worse with time. We didn’t have drug testing until the 1980s and the Drug-Free Workplace Act. And in the 21st century, we got the almighty Clearinghouse to prevent job hopping.”

Clearinghouse is an online FMCSA database “that gives employers and government agencies real-time access to information about CDL [commercial drivers license] driver drug and alcohol program violations.”

“Such a law harms the livelihoods of perfectly well-performing employees,” Skoric asserts. “It is essentially just a relic of a racist past. Cannabis should get off Schedule I and the DoT drug testing assay just as fast as the Robert E. Lee statues got off their pedestals.”

A misunderstood question
There are signs that Skoric’s campaign may not be that quixotic.

After years of upholding employee firings for use of cannabis even under state medical marijuana programs, the courts are finally starting to turn around on the question. In 2018, Connecticut health care worker Katelin Noffsinger won a federal discrimination suit against a rehab center that withdrew a job offer after she tested positive for THC, despite being an enrolled medical user.

In 2019, Arizona Walmart employee and card-holding medical marijuana patient Carol Whitmire, fired after testing positive for cannabis, won a wrongful termination suit in federal court.

Fifteen states have passed laws making it illegal for an employer to discriminate against either an employee or job applicant who uses medical marijuana as permitted by state law. Alas, Vermont is not among them.

In 2019, two years after legalizing, Nevada became the first state to bar employers from discriminating against job applicants on the basis of a positive test for cannabis.

The whole question of "marijuana-impaired driving" tends to be misunderstood.

First of all, contrary to prohibitionist predictions, the notion of a link between road fatalities and the lifting of legal pressure on cannabis hasn’t stood up to the number-crunching. Numerous studies have found no such link.

Just last month, a study by researchers at the University of Toronto found that implementation of adult-use cannabis sales in Canada has not been associated with any increase in traffic injury-related hospitalizations. The study, published in the journal Addiction, concluded: “Overall, there is no clear evidence that RCL [recreational cannabis laws] had any effect on rates of ED [emergency department] visits and hospitalizations for either motor vehicle or pedestrian/cyclist injury across Canada.”

In 2021, a team of investigators affiliated with Canada’s Centre for Addiction & Mental Health in Toronto assessed emergency room records in two provinces, Ontario and Alberta, to determine trends in traffic-injury visits in the months immediately prior to and immediately after legalization took effect in October 2018. They found that initiation of legal sales was not associated with any increase in traffic injuries requiring hospitalization. 

A 2019 study on cannabis and driving cast doubt on zero-tolerance limits for THC. The study, also by the Centre for Addiction & Mental Health, found that THC can indeed impair driving—but that applying laws designed for booze to cannabis is bad science and bad policy. While alcohol dissipates from the bloodstream rapidly after intoxication, THC can keep showing up on tests for weeks after any impairment has ended.

In 2017, the Massachusetts supreme court issued a unanimous ruling, voiding court testimony based on “sobriety tests” carried out by police on motorists suspected of driving under the influence of cannabis. In limiting evidence from the standard roadside tests used to snare drunk drivers—walking in a straight line, standing on one foot—the court found there is no scientific consensus that those tests prove someone is under the influence of cannabis.

Meanwhile, Ivo Skoric, living off dwindling savings, is determined to become a test case in challenging what he sees as an outdated dogma.

“I vow not to let my personal tragedy go to waste,” he says. “I am not going to rest until I see that law gone.”


Cross-post to Cannabis Now

Graphic by Americans for Safe Access


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