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Legalized pot use vs. employer drug testing

A man smokes marijuana

A man smokes marijuana during a pro-marijuana rally at Civic Center Park with the Colorado State Capitol Building in the background. The state recently legalized the drug for recreational use, which has raised questions about employers' right to drug test. 

The lawsuit Brandon Coats filed against his former employer Dish Network stemmed from anger.

Coats was angry because Dish Network fired him in 2010 after his random drug test came back positive for traces of pot.

Coats had been upfront about his pot use. As a quadriplegic with powerful muscle spasms that make it hard to stay still while seated in his wheelchair, Coats used medical marijuana to calm his muscles and allow him to function.

“In the part of my body where I'm paralyzed, my body tries to send signals to my head, and it doesn't get through and gets sent back down, and what that causes is for my muscles to flex really hard,” Coats said.

Coats used to take other medications. But he says none worked as well as marijuana with so few side effects. He explained this his employers at Dish Network in 2010, when his random drug test came back positive. But the company decided to fire him, citing the positive drug test as the reason. They told Coats he could reapply for his job, if he could pass a drug test.

But Coats took another path. He sued Dish Network, claiming the marijuana he uses is just like any other medicine. Coats has a medical marijuana card issued by Colorado. His use of marijuana was and continues to be legal in the state.

But Coats lost in state court and at the appellate level, where a three-judge panel ruled last spring that even though Coats’ marijuana use was legal in the state, it was illegal under federal law, so Dish Network had a right to fire him.

The case did not end there. Coats appealed to the Colorado Supreme Court, which has agreed to consider the case. Legal experts in the state expect the court to hear arguments over the summer and rule by early fall.

“Employers really need to keep an eye on this decision. It’s not just Mr. Coats,” said Vance Knapp, a labor law attorney who advises Fortune 500 companies at the Denver-based firm Sherman & Howard. “If the Colorado Supreme Court were to rule in Mr. Coats’ favor, that sort of decision would help other proponents of marijuana use in other states and other jurisdictions to support their argument that employees should have protections for using marijuana,” Knapp said.

Right now, there are few if any such protections. All 50 states allow employers to restrict marijuana use, and employees are often surprised that even though marijuana use may be legalized in their state, they can still face sanctions or dismissal by their employers if they test positive for the drug, according to Knapp. 

The Coats case in Colorado could prove a test for that precedent because the state has not only legalized marijuana, but also has a law on the books that explicitly protects workers’ lawful activities outside of work.

The question then comes down to whether marijuana use is lawful. The appellate court said it is not enough for the activity to be lawful under state law, it also has to be lawful under federal law.

If the Colorado Supreme Court reverses that ruling, it would create headaches for businesses around the country, which could find themselves with employees demanding protected status for their marijuana use, Knapp said.

Meanwhile, employers in Colorado and elsewhere are not waiting for a resolution to Brandon Coats’ case. They have been ramping up their drug testing ever since the state legalized recreational marijuana in January, according to a survey by the Mountain States Employers Council, a membership organization that helps companies with human resources issues.

Employers are worried about the costs of substance abuse, says Curtis Graves, a staff attorney with the council.

“There’s a great deal of statistics out that drug use and alcohol, cost employers an enormous amount of money, in the hundreds of millions of dollars a year. So, the marketing message is that by drug testing, they can save money,” Graves said, adding that employers are also concerned about potential liability costs if there is an accident and an employee tests positive for pot use.

A government-sponsored survey conducted in the 1990s did find that drug and alcohol use was costing the U.S. economy $276 billion a year. But proponents of marijuana say the drug is being unfairly targeted. Most employers don’t test for alcohol use, for example. And there are questions as to the science and accuracy of drug tests that find inactive marijuana compounds in people’s bodies (such compounds can remain in someone’s system weeks after they last consumed marijuana).

Michael Evans, the attorney who represents Coats, says that goes to the heart of their case. Dish Network did not know when Coats had taken the marijuana before deciding to fire him. All the company knew was that he had taken it at some point in the recent past. And that is not good enough, says Evans.

“It's about giving the [drug testing] laboratory the right instructions,” Evans said. “If they want to fire somebody that is high on marijuana, they can and they should. Just like they should fire somebody that came in drunk as a skunk after lunch, after having too many margaritas.”

But, Evans adds, employers should not fire someone who is taking marijuana in their own time and who is not intoxicated at work. 

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