You can still get fired for smoking pot even if you have a medical marijuana card
WEST PALM BEACH FL March 27 2021— Shortly after noon on Feb. 4, Jason McCarty went to his car in the city hall garage.
The city’s deputy chief of Information Technology wanted to buy his co-workers lunch — it was a birthday, for one of them — but he’d left his wallet in his car, so he took the elevator up to retrieve it while they stood downstairs.
When he went to take the elevator back down, two other city employees passed by, walking out.
He seemed “anxious and avoidant,” one thought. As the two Risk Management staffers continued into the parking area, they caught a whiff of pot near McCarty’s car.
That impromptu smell test led Safety Officer Tim Scott and Risk Analyst Alexis Galvan to report McCarty to city management without delay. They attested in signed letters that they suspected he smoked cannabis in the garage. “As I approached the driver door of this vehicle, it was clear that a cologne of some type had been used to mask the scent of the smell,” Galvan wrote.
The next day McCarty, a 50-year-old father of two, a five-year, $121,000 employee without a ding in his record, was banished from city hall. His days of keeping city computers running come hurricane or COVID were over.
At a time when marijuana restrictions are loosening across the country, when even President Biden has said he wants to end criminal penalties and expand medical research regarding marijuana – and when a handful of marijuana or CBD dispensaries have opened within a block of West Palm Beach City Hall – McCarty found out you can still get fired for smoking a joint, even if you have a Florida medical marijuana registration card, as he does, and your doctor recommends it.
And no, he didn’t grab a quick hit in the garage, he insisted.
As he divulged before taking the urine test, he smoked at home the night before for anxiety and insomnia, rather than take a sedative that would leave him groggy the next day. His elderly mother is extremely ill and he has been unable to sleep, said his attorney, Russell Cormican Jr.
“I just think it’s outrageous, insulting,” Cormican said. “There’s this perception around the country that people don’t get screwed over by marijuana laws anymore. People’s lives can get turned around over this. It’s really wrong.”
McCarty declined to discuss the matter, as he’s job-hunting. He has not decided whether he’ll sue the city.
“He’s not trying to be a medical marijuana martyr,” Cormican said. “He just wants a job.”
A city spokesperson said West Palm Beach has caught five employees violating its substance abuse policy since 2019. All five were fired.
Employees are forbidden from coming to work with “illegal or illicit” substances in their bodies, Director of Communications Kathleen Walter said. The policy is “for the safety and protection of employees and the public as well as to ensure safe and efficient delivery of programs and services to the public and to maintain the safety and integrity of our infrastructure, including IT,” she said.
“It should be noted the city has contracts with and receives grants and Federal Emergency Management Agency (FEMA) funds from the federal government, and to be eligible must comply with all federal laws, including the Drug-Free Workplace Act and the Controlled Substances Act,” she continued.
West Palm updated its marijuana workplace policy in January
Medical marijuana isn’t illegal under Florida law. But as of Jan. 28, 2019, the city updated the policy, “given the conflicting information in the public sphere about the use of marijuana in the workplace,” she said.
That paragraph, added on page 13 of the 15-page policy, stated that the prohibition applied to any substance banned under federal law, regardless of whether it’s legal under Florida law.
“The use of marijuana by city employees, including medical marijuana, with or without a prescription, is prohibited” and a prescription is not accepted as a valid explanation for an employee’s positive drug test result, the paragraph states.
Cormican said McCarty never intended to break the rules and would have been happy to substitute another medication, if he knew about that added paragraph.
What’s more, the policy says employees who violate the policy are subject to penalties “up to and including termination.” It doesn’t require a model employee and first-time offender to be fired, he said.
He also questioned whether the city had a right to order the urine test based on the other employees’ suspicions. The garage is open to the public and is within walking distance of marijuana shops.
Another potential defense for a lawsuit: In Cormican’s view the policy violates Florida civil rights law because McCarty didn’t violate state law. Also troubling, he said, is that the city policy seems to contradict itself, and at the least is obtuse rather than transparent, indicating one thing higher up in the policy and burying the update at the bottom.
Five co-workers, including those who waited below while he ran up to his car, submitted letters of support for his personnel file.
Jose Iraola wrote: “On the day in question, we went to lunch together to celebrate my birthday. I did not, nor have I ever seen you impaired in any way, shape or form. I did not smell anything weird or offensive coming off of your body as we walked together to lunch and sat at the same table. In these last three years that I have worked with you, you have been nothing but pleasant and a pleasure to work with. You always go above and beyond when it comes to your job. You always treat everyone with respect and dignity. When this pandemic blindsided us, you stepped up…. You worked late hours, long days and even on weekends to make sure city operations were not affected by this unprecedented time. You have always led us with compassion, integrity and enthusiasm. You have an excellent rapport with all city staff and you are always ready and willing to help everybody both internally and externally. You have always led by example and you are the type of leader that I one day wish to be….”
Brian Hadad wrote: “Over the past three years of working together, I have never seen you act in a way that would give me cause to suspect you were under the influence of any substance. Furthermore, on Thursday of last week, when we went to lunch, I did not smell anything strange, nor were you acting in a way other than your normal self.”
Miguel Gamino: “In my five-plus years of working with you, I have never seen any suspicious behavior that would lead me to believe that you were impaired or under the influence of any drug.”
Marilyn Dynes: “You work day and night trying to get all your work tasks done and so much more, because you don’t only support our department but the rest of the city as well, and that’s how you have become so loved by everyone. You definitely put your heart and soul into everything that you do, from planning the chili cook-off, the work parties, the decorations, the picnics. You have one of the biggest hearts I know. In all the years I have worked with you, I have never seen anything out of the ordinary, you are an admirable man.”
Valencia Dyett testified to never seeing him under influence and that morning she was standing over him, working on his monitor. “I was within two feet of him and did not get any indication (or scent) that something was improper. Jason has always exhibited the utmost professionalism. He has the respect of his colleagues within IT and his innumerable clients throughout the city…..”
Recreational marijuana remains illegal in Florida, though Palm Beach is among the counties that have decriminalized possession of small amounts.
But medical marijuana use has been legal in Florida since 2017 for specified conditions, including cancer, epilepsy, glaucoma, HIV/AIDS, amyotrophic lateral sclerosis (ALS), Crohn’s Disease, Parkinson’s, multiple sclerosis, chronic nonmalignant pain, post-traumatic stress disorder and comparable conditions. In 2019 the Florida legislature repealed its ban on smokable medical marijuana.
Nonetheless, despite eased restrictions in Florida and many other states, marijuana remains illegal under federal law and it is that law to which the West Palm Beach policy hews.
And not only is marijuana use banned for city employees, but employees who reasonably suspect use by another employee and don’t report it can be fired.
While the prohibition against medical marijuana was added near the bottom of the city’s 15-page policy statement, the “Employee Responsibilities” section is at the top, in section 1.A.: “Any employee who believes that a city employee is using or has used drugs or alcohol in violation of this policy shall immediately report that information to their department director, Risk Management or Employee Relations.”
As the city spokeswoman said: The Risk Management Division, for which the two employees who reported McCarty work, “is charged with ensuring employee safety and that employees are following safety processes and procedures, including but not limited to adherence to the Substance Abuse Policy.”
Risk analyst Galvan declined comment on the incident that led him to report McCarty, deferring to the city spokesperson. Messages for colleague Tim Scott were not returned.
The policy calls for drug testing based on “reasonable suspicion,” meaning “observable phenomena” or “abnormal conduct” from which the observer can draw “reasonable inferences.” Risk Management staffers Scott and Galvan’s letters fell along those lines.
“I was able to determine the smell was very strong in the immediate vicinity of Jason’s vehicle and less noticeable when I walked away,” Scott reported to management. “When I approached the driver’s side door of Jason’s vehicle, I was also able to smell what appeared to be men’s cologne. This was only present in the immediate area of Jason’s driver’s side door area. The odor of marijuana went away within five to seven minutes with no other persons being present at this time.”
A heavy heart, a puff of marijuana and Jason McCarty lost his job in a wisp of smoke.
