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Hazy Outlook: The Struggle Between Employer Drug Testing and Legalized Marijuana

If you legally use medical marijuana on your own time, should your employer be able to fire you for a failed drug test?

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By Paul Gaita

08/14/14

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The New York Times found itself in the headlines when the newspaper threw its weight behind the legalization of marijuana. Unfortunately, the decision also cast a cold light on the Times’ internal policies, which require employees to submit to testing for drugs, including marijuana. The resulting uproar, which included a petition asking the publication to repeal its tests that was signed by more than 5,000 individuals, has brought into sharp focus one of the core issues inherent to the movement to legalize marijuana: can companies still enforce anti-drug rules in this increasingly pro-pot environment?

On one level, the answer remains an unquestionable yes. Though 20 states have legalized marijuana for medical use, very few have provided legal protection for patients. If employers have stated in their human resources handbooks that the use of marijuana or other drugs is against their company policy, employees can be dismissed, and prospective candidates will not be hired, if they draw a positive test for said substances. Cannabis is still a Schedule 1 drug on the Drug Enforcement Agency’s Controlled Substances Act, which means that even in states like Washington or Colorado, where marijuana has been approved for medical and/or recreational use, it remains an illegal substance under federal law. “Employers hold all the cards,” said David Rheins, CEO of Seattle’s Marijuana Business Association. “If not using marijuana is in the contract, or the terms of the job, you can get fired.”

But attempts to enforce these policies to the letter of the law have nudged the issue into murky legal waters. Case in point: Michael Boyer, whose status as the first resident of Spokane, Washington, to legally purchase recreational pot was documented on national television. Among those watching Boyer’s moment in the spotlight were his employers at TrueBlue Labor Ready, which immediately required him to submit a drug test. Boyer balked, knowing that his test would come back positive, which resulted in his dismissal. However, the attention generated by his plight spurred TrueBlue to reverse their decision and hire back Boyer on the grounds that they were unaware that he had taken the day off to make his historic purchase, and as such, would not be reporting impaired to that day’s work.

On the same day that Boyer bought weed, Seattle City Attorney Pete Holmes was photographed making a similar purchase at a local cannabis shop. Though minted as a forward-thinking hero to Washington’s pro-pot movement, Holmes later stated that he was in violation of Seattle’s drug-free workplace policies by bringing the substance to his office, where it remained unopened until he brought it home. Holmes later made a public apology and volunteered to donate $3,000 to the city’s Downtown Emergency Shelter. 

However, it may be the case of Dish Network employee Brandon Coats that eliminates gray areas in national policy. The Colorado resident, who is a quadriplegic due to a spinal injury that requires him to use a wheelchair, used marijuana to calm powerful muscle spasms that made it difficult for him to perform basic functions. Though he had a medical marijuana card issued by the state of Colorado and only used the substance in his own home after work hours, Dish Network fired Coats in 2010 for failing a drug test. Under Amendment 20 of the Colorado Constitution, employers are not required to “accommodate the medical use of marijuana in any work place,” but the law is not explicit in regard to whether employees can be dismissed for using medical marijuana at home. 

Coats sued the company on the grounds that his marijuana use was for medicinal purposes and legal in Colorado, but lost his cases at both the state and appellate levels, where judges ruled that Dish Network was within its rights to terminate Coats over use of a substance that was illegal under federal law. Coats has since appealed to the Colorado Supreme Court, which will hear arguments this summer before a ruling slated for early fall. If Coats should emerge victorious, the entire issue of drug testing for employees could be upended. “Employers really need to keep an eye on this decision, said Vance Knapp, a labor law attorney for the Denver firm Sherman & Howard. “[A favorable] 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.” In short, the same protections afforded to employees who use alcohol and prescription drugs might be extended to marijuana users. As with the efforts of the marijuana legalization movement, both sides are looking at an uphill battle on an ill-defined landscape.

Paul Gaita is a Los Angeles-based writer. He has contributed to The Los Angeles Times, LA Weekly, Amazon and The Los Angeles Beat, among other publications and sites.

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