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Published: August, 2015; Vol 12, Num 3

 

With Marijuana, It’s Not a Judgment … It’s the Law

By Jamie Becker

Brandon Coats

On June 15, 2015, the Colorado Supreme Court issued a long-anticipated ruling that a business can fire an employee for using medical marijuana even if the employee is off-duty and abiding by state law (medical use of marijuana has been legal in Colorado since 2000). In the case, Coats v. Dish Network, L.L.C., Brandon Coats, an employee of Dish Network, sued for wrongful termination after he tested positive for marijuana. Mr. Coats is a quadriplegic and a registered medical marijuana user who used the drug outside of working hours.

The Colorado Supreme Court ruled that employees can still be fired because marijuana is still considered illegal by the federal government, making this case a high-profile example of the sharp divide between state laws and the federal law. This decision will likely have far-reaching effects both in Colorado and in other states that have decriminalized various aspects of marijuana use.

Laws that legalize marijuana – for medical use, recreational use or both – may complicate, but do not eliminate an employer’s right to maintain a drug-free workplace. Despite specific state laws, the following facts have not changed:

  • The sale and use of marijuana remains illegal under federal law in every state in the U.S., Washington, D.C., and territories such as Puerto Rico and Guam.
  • Much of today’s workplace drug testing is mandated by federal law.
  • Many employers in each state receive deferral grants for a variety of projects. Accepting this federal funding requires compliance with the Drug-Free Workplace Act.
  • Employers still have the right to insist that employees be drug-free while at work, not bring illicit drugs to work and not use such substances while on the job. A positive drug test for marijuana can still result in adverse employment action.
  • Under OSHA’s General Duty Clause, employers are required to provide employees with a workplace “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”
  • Workplace drug prevention programs, including workplace drug tests, help protect the health and safety of all employees as well as the productivity of the workforce.

The need for a well-written drug-free workplace policy has never been greater. The following recommendations are encouraged for LIUNA signatory contractors and/or training centers that conduct drug testing:

  • A written policy that directly addresses employee marijuana use is a key component in any drug-free workplace program.
  • A comprehensive policy will include a section on prohibited behavior, drug testing and consequences for policy violations. These three sections are critical links that must be connected when it comes to marijuana in the workplace.
    • A prohibited conduct section will include many different types of behavior that is considered inappropriate. Among these should be: a) being under the influence of marijuana (as defined by the company) and b) testing positive for marijuana.
  • A drug test does not prove impairment but a company can define the term “under the influence” to include testing positive. Therefore, when someone tests positive, he or she is considered to be under the influence of that drug.
  • The drug testing section should describe what drugs the company will test for, the cutoff levels that will be considered positive and the testing method that will be used.
  • Employers should be very specific in describing how drug testing will be conducted.
  • Employee and supervisor education about the policy – what it says and how it is applied – is critical. Everyone the policy applies to should be clear on the drug-free workplace program and have an opportunity to ask questions about it.

Although public support for the legalization of marijuana continues to increase, it does not change the fact that there are very real laws and legal consequences that need to be considered and followed when developing or updating drug-free workplace programs and policies.

While people tend to have strong opinions about the topic of marijuana legalization, one belief we are likely to share is that the health and safety of LIUNA members is of critical importance. The LHSFNA will continue to act in the best interest of LIUNA members and signatory contractors, keeping health and safety in the forefront of all guidance.

[Jamie Becker is the Associate Director of the LHSFNA’s Health Promotion Division.]