Currently, 23 states and the District of Columbia have legalized medical use of cannabis (some in all forms, other states have legalized CBD oil only) while four states (Colorado, Oregon, Washington, and Alaska) and D.C. have legalized recreational use. Recent data indicate that 21 million Americans now use marijuana recreationally, while about a million more use it for medical reasons.
These data (along with additional ballot initiatives in more states for legalized use and sale coming up) suggest that the trend toward more expansive “legal” use of marijuana will only increase, and this creates a quandary for employers. When substance abuse prevention programs (whether voluntarily adopted by the employer or mandated by laws including US Department of Transportation requirements for commercial drivers and those affecting government contractors) prohibit the use of “illegal” drugs by employees and job applicants, what limitations do employers face in areas with liberal recreational and/or medical marijuana laws?
THE ISSUE
Should the employer regard any level of THC measurable in a worker’s system as a zero tolerance violation, or should the focus be on impairment while on duty. At present, there’s no “bright line” test for cannabis impairment, although some states have adopted 5 nanograms as an “impaired” threshold for driving purposes. Of course, clearly an employer in “legal” cannabis state can bar use and impairment during working hours, just as they can also ban drinking alcohol and smoking tobacco in the workplace (two other “legal’ substances). The issue is that, while impairment may quickly fade if an employee smokes or consumes cannabis off-duty, and there is no “hangover” effect the next day, marijuana metabolites can remain in the system for days or even weeks. Current tests can capture past use but are not necessarily indicative of the state of a worker’s fitness for duty.
While each state that has “legalized’ marijuana in some way or another has a unique statutory scheme and language used to define parameters of the laws and the scope of protections, a recent decision on medical marijuana use in Colorado indicates how the matter will be viewed by the courts in that jurisdiction. The decision is not binding outside of the state of Colorado, although it could be viewed as persuasive authority in similar cases with similar legislative verbiage.
THE CASE
On June 15, 2015, the Colorado Supreme Court issued its long-awaited decision in a controversial medical marijuana case, Coats v. Dish Network, holding that a quadraplegic employee with a valid medical marijuana card could be terminated for off-duty use of the herb that caused him to flunk the employer’s random drug test. The employee worked as a telephone representative and apparently was not in a “safety sensitive” position. He sued Dish Network, alleging that the termination for medical marijuana off-duty use that was legal under Colorado state law violated the Colorado “Lawful Activities Statutes” (“LSA,” Section 24-34-402.5). The LSA prohibits Colorado employers from discharging an employee based on his engagement in “lawful activities” off the premises of the employer during nonworking hours.
The court considered two issues: (1) whether the LSA protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance; and (2) whether the Medical Marijuana Amendment (MMA) makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered with the state [as the plaintiff was].
THE OUTCOME
The employee, Mr. Coats, contended that Dish Network violated the LSA by terminating him based on his outside-of-work medical marijuana use, which he argued was lawful under the MMA and its implementing legislation. In affirming a ruling in Dish Network’s favor issued by the Colorado court of appeals, the court rejected the worker’s argument that his drug use was a lawful activity, based on marijuana’s still-illegal status as a Schedule 1 Controlled Substance under federal law.
The court interpreted the MMA’s “lawful activity” as providing registered patients with an affirmative defense to state criminal prosecution without making their use a “lawful activity” within the meaning of the LSA. The court looked at the definition of “lawful” as “that which is permitted by law” and found that, for purposes of the LSA, activities that are governed by both state and federal law must “be permitted by, and not contrary to, both state and federal law.”
Given that the federal Controlled Substances Act prohibits all marijuana use, Coats’ conduct could not be deemed a protected “lawful activity.” While a dissent opinion at the lower court level had urged that the term “lawful” must be interpreted only according to state law (under which marijuana use would be a “lawful activity”), the state supreme court refused to engraft a state law limitation onto the term. Federal law currently designates marijuana as “having no medical accepted use” and “a lack of accepted safety for use under medical supervision.” There is no exception under the CSA for medicinal purposes, and the Supremacy Clause of the US Constitution provides that if there is any conflict between federal and state law, federal law shall prevail.
LOOKING FORWARD
There are indications of movement at the federal level: In December 2014, Congress passed an appropriations measure barring the Department of Justice from using any funds to prevent Colorado and similar states from implementing their own state laws that authorize use, cultivation, and distribution of medical marijuana. For its part, the Justice Department announced it will not prosecute cancer patients or those with debilitating conditions who use medical marijuana in accordance with state law.
For now, while federal policy and even laws on this issue may change before long, the Dish Network case provides a basis for employers to continue enforcement of their drug-free workplace rules … at least in Colorado. ■
About The Author:  Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more, visit www.safety-law.com.
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Modern Contractor Solutions, July 2015
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