Win for Employers Rights to a Drug Free Workplace

…Colorado Medical Marijuana Use Not Upheld!…Huge Win for Employers Rights to a Drug Free Workplace

In a long awaited ruling, the Colorado Supreme Court today ruled that the termination of former DISH TV Network employee was in accordance with existing law.  The ruling was 6-1 stating that DISH had the right to fire Mr. Brandon Coats.

Coats tested positive for marijuana on a random drug test administered by DISH TV Network in year 2010.  He had a medical recommendation for medicinal use of marijuana.

Mr. Coats appealed his termination through the Colorado court system losing each appeal.

As some background, Mr. Coats is a quadriplegic who used marijuana at home to help control his pain. He used marijuana for medicinal purposes even after being told that he was subject to random drug testing.

He tested positive for marijuana and his employment with DISH TV was terminated.  He went to court to get remediation.

The ruling is interesting in that it uses “plain language” in making the determination.  There is a statute in Colorado that is for “lawful activities”.  The term “lawful” refers to activities are that are lawful under both state and Federal Law.

Because the use of marijuana for medicinal or recreational purposes is lawful in accordance with state law but not lawful in accordance with Federal law, the use of marijuana is not protected by the statute allowing the use of marijuana for medicinal purposes within the state of Colorado.

What are the implications for employees and employers in light of this decision?  Employers should continue to put strong language in their policies regarding the use of marijuana and consequences of a positive drug test for marijuana.  This is in essence, a “green light” for those employers who desire to maintain a strong drug free workplace.

In the state of Colorado, employees who use marijuana for medicinal or recreational purposes have some tough choices to make.  Do these employees continue to use marijuana?  More importantly, and can they expect to remain employed if the employer has a strong drug free workplace program?

Of course there is the option of another voter initiative that would redefine the lawful activities statute to make it applicable only for Colorado state law.

Of course the Cannabis Therapy Institute viewed this ruling with the following statement:

“This is a sad day for Colorado medical marijuana patients, who have now have no protection for off-duty use of medical or recreational marijuana,” the Cannabis Therapy Institute said in a statement. “Patients have no protection for their use of medical marijuana as far as employment goes. The lesson is — just because a ballot initiative purports itself to be in favor of patients or ‘legalization’ of medical marijuana, doesn’t mean that it actually protects patients.”

What will happen next is largely unknown but employers should very closely review their policies.  If companies operate in multiple states and ae confronted with a variety of marijuana laws, the policy for each state will have to be reviewed and adjusted to meet the legal requirements of each state.

Readers should take note of the final paragraph in the decision that reads:

“Having decided this case on the basis of prohibition under federal law, we decline to address the issue of whether Colorado’s Medical Marijuana Amendment deems medical marijuana “lawful” by conferring a right to such use.”

Employers should take swift action and review drug free workplace programs to insure that medical and recreational marijuana issues are addressed.  What is your company policy on this subject?  Let your employees know your stance on medical and recreational marijuana use.  Understand your State’s laws on marijuana and stay tuned as this issue continues to create new employer challenges.  This is a good win for employers and the momentum stays on the side of the rights of an employer to operate as a drug free workplace.

It is planned to do a series of articles on the issue of medical and recreational marijuana along with the new emerging information about medical marijuana.

Robert C. Schoening

Win for Employers Rights to a Drug Free Workplace
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