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Courts Drop the Hammer on Employees Using Medical Marijuana

Many districts have been asking: What rights do employees have to possess THC in their system at work stemming from medical or recreational use of marijuana? Recent court decisions have the answer to that question.shutterstock_294719558

In a case with vast implications for employers in states that have legalized the medical and recreational use of marijuana, the Colorado Supreme Court recently ruled in favor of a business that fired an employee for failing a drug test.1

After failing a random drug screening in 2010, Brandon Coats, a quadriplegic who is prescribed medical marijuana to treat his seizures, was fired by Dish Network. The company admits that Coats wasn’t high on the job but cited its zero-tolerance drug policy as the reason for the dismissal.

The court ruled that employees “who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”2 Courts in California, Montana and the state of Washington have also ruled against medical marijuana patients who were fired for pot use.

Though Coats’ case involved the use of doctor-prescribed medical marijuana, the court’s decision could also affect how companies treat those who use marijuana recreationally.1

After recreational marijuana was legalized in Colorado in 2012, more than a dozen business organizations pleaded with then-Attorney General Eric Holder to enforce the federal laws outlined in the Controlled Substances Act.

“Passage of Amendment 64 has left considerable uncertainty for employers and businesses in Colorado with regard to their legal rights and obligations,” read their letter to Holder. “At a time when the Colorado economy is successfully emerging from the most recent economic downturn, enjoying certainty in our business decisions will assure continued growth in our economy.”3

It took several months before the Attorney General’s office notified Colorado that they would not interfere with Colorado’s marijuana laws, leaving many employers with the difficult task of enforcing conflicting messages when it comes to using marijuana.

On one hand, the voters in Colorado have clearly demonstrated their general acceptance of marijuana by voting to legalize the drug for recreational use, and many employers don’t care if their employees light up when they’re away from work.

However, the drug’s status as a Schedule 1 Controlled Substance means that marijuana use for any reason is still against federal law, and many employers must maintain their status as a drug-free workplace in order to receive government funding and access to better insurance and Workers’ Compensation rates.4

Many businesses are also concerned about the possibility of being sued if a pot user gets into an accident, especially considering the fact that marijuana stays in your system for several weeks.

So even if a driver has never consumed marijuana on the job, or hasn’t consumed marijuana anywhere in several days or even a few weeks, they’re still very likely to fail a drug test if they’ve consumed marijuana at any point in the preceding weeks.

The Department of Transportation has a long-standing regulation banning the use of marijuana by any safety‐sensitive transportation employees. Pilots, bus drivers and truck drivers, train engineers, subway operators, aircraft maintenance workers, armed security transit personnel, ship captains, and pipeline emergency response personnel are all forbidden from using marijuana and are required to undergo regular drug testing.5

In fact, Denver’s Regional Transportation District has been struggling to find enough drug-free workers to fill their open positions. “Because the economy is recovering so rapidly, there is a lot of competition for drivers, mechanics and other related positions,” said RTD spokesman Scott Reed.4

At a recent Colorado Staffing Association meeting, business owners said that “candidates for less skilled, lower-paid jobs were more likely to use marijuana than those seeking higher paid jobs that require more training.”4

Recent drug testing data backs these claims up. Quest Diagnostics, one of the leading drug screening providers in the country, has reported increases in the number of positive drug tests each year since marijuana was legalized in Colorado (from 1.92 percent in 2012 to 2.3 percent in 2013, then up to 2.62 percent in 2014).4

Tony Milo, the executive director of the Colorado Contractor’s Association, says that “in a strong economy where there’s fierce competition for reliable employees,” his 130 member companies are also struggling to find enough drug-free workers to fill open positions.

Considering the safety requirements of working in traffic and operating machinery, the majority of the CCA’s members require applicants to pass a pre-hire drug screening.4

“Anyone who is impaired on the job is not only putting themselves at risk, they are putting their coworkers and the general public at risk,” said Milo. “People need to realize that even though marijuana may be legal in Colorado, if you want a good job in a field that is safety sensitive, it still has to comply with federal regulations.”4

Aside from the obvious safety issues regarding employment and marijuana use, others express concerns about the potential of employees missing more time from work and the long-term public health consequences of marijuana use.

Karen Harned, the executive director for the National Federation of Independent Business, says that her organization is “extremely happy” with the Colorado Supreme Court’s decision.

“Companies have a very powerful obligation to protect their employees, their customers and themselves,” she said. “Colorado’s drug law cannot be used as a means of forcing companies to assume unnecessary financial and legal risks.”

Many experts believe that the Colorado Supreme Court’s ruling will probably clarify things for many employers that weren’t quite sure how to proceed with their workplace drug policies.

But Curtis Graves of the Denver-based Mountain States Employers Council, an organization that provides legal services and human resources assistance to roughly 3,000 companies, says that the issue is still far from settled.4

“While the court’s decision is not surprising, it solidifies — for now — employers’ ability to terminate employees for marijuana use in or out of the workplace,” said Graves. “However, the issue is far from over for employers, as marijuana’s legal status is certain to evolve for years to come.”4

Stay tuned for more to come on this issue.

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