Colorado court: Workers can be fired for using pot off-duty
June 20, 2015 5:47 AM   Subscribe

Earlier this week, the Colorado Supreme Court unanimously confirmed that although medical marijuana is legal, employers have the power to fire workers if they fail company-sponsored drug tests. Monday’s ruling is the latest in a series of decisions around the country denying job protection to state-sanctioned medical marijuana users who medicate off-duty.
posted by Sir Rinse (49 comments total) 6 users marked this as a favorite
 
One does wonder how long the legal as well as cultural divide on marijuana can last. Yesterday our business manager disliked an applicant because she thought he seemed like a pot smoker; today I passed people setting up some kind of marijuana...expo? Down the street from my house.
posted by Bulgaroktonos at 5:53 AM on June 20, 2015 [7 favorites]


I know so many professionals who smoke, the drug test thing never seems to hit them as much. It's the lower level workers who get nailed by this stuff. Same as it ever was.
posted by Drinky Die at 5:56 AM on June 20, 2015 [84 favorites]


But RTFAing...yeah, it's still illegal. I've always had mixed feelings about state laws deciding which federal laws get enforced even though I'm all about the pot legalization. If the federal government isn't going to arrest me for pot in Colorado, it shouldn't arrest me for it in PA. The federal law is what it is. It's reasonable to allow companies to fire people for violating it even though it is one of the dumbest laws in the history of human civilization.
posted by Drinky Die at 6:01 AM on June 20, 2015 [3 favorites]


As the article notes, CO law would have protected the worker from being fired had the weed not been illegal under Federal law. So while state by state legislation is great for showing Washington what the people think, the system doesn't really work until Congress fixes the laws nationally.
posted by CheeseDigestsAll at 6:08 AM on June 20, 2015 [10 favorites]


OK, now do antidepressants. It's the only "fair" thing to do, right?

Oh, I'm sorry, is there a line here that you didn't want to talk about?

Jesus, the state system is fucked.
posted by clvrmnky at 6:12 AM on June 20, 2015 [8 favorites]


Drinky Die: "I know so many professionals who smoke, the drug test thing never seems to hit them as much. It's the lower level workers who get nailed by this stuff. Same as it ever was."

I'm a pretty senior software guy and have had to submit to a drug test to get my job and that was the forth time I had to do that.
posted by octothorpe at 6:15 AM on June 20, 2015 [2 favorites]


I'm willing to submit to a drug test, but I prefer depositing the sample directly into the CTOs mouth.

But I'm Canadian. We're weird that way, with our few remaining rights and privileges.
posted by clvrmnky at 6:19 AM on June 20, 2015 [11 favorites]


It was a good decision. The US Supreme Court has unambiguously upheld the supremacy of federal drug laws over state drug laws. There is no good faith argument to be made that a regular user of medical marijuana, even in compliance with state laws, is not also a habitual violator of federal drug laws. Making employers absorb vast potential liability for employing such people under circumstances where they would not, for example, employ heroin or cocaine users, is not the solution, action by Congress and the President is.
posted by MattD at 6:24 AM on June 20, 2015 [4 favorites]


From my (limited) experience, repeated and random drug testing is focused on a few groups of people: low-level employees, especially in public-facing jobs, people who work with heavy machinery (which are often low-level jobs), and people who work with legal drugs.

Testing for drugs when applying for a job is a broader net, and one that can be used to sort out the people who can't abstain long enough for a clean test, or don't plan well enough to see such a test coming. Once you're in, no one minds as long as you don't show up stoned, drunk, or hung over. Get the job done, don't make the clients uncomfortable, and everything's OK.
posted by filthy light thief at 6:31 AM on June 20, 2015 [16 favorites]


Here's a short posting comparing Colorado to Minnesota. Minnesota just passed a very restrictive medical marijuana law, but did include a clause to protect users:

For example, under Minnesota’s new medical marijuana law, which will take effect on July 1, 2015, an employer generally cannot discipline an employee for the lawful, off-duty use of medical marijuana. If this law had been in effect in Colorado, the Coats case likely would have turned out differently.

Note also that random drug testing in the workplace is only allowed in Minnesota under fairly strict circumstances.
posted by gimonca at 6:48 AM on June 20, 2015


If this law had been in effect in Colorado, the Coats case likely would have turned out differently.

I think this claim is going to require a pretty detailed justification, rather than just an assertion.
posted by kiltedtaco at 7:09 AM on June 20, 2015 [2 favorites]


One day this sort of ruling will go to the Supreme Court. Clearly what is legal within a state can not be called illegal by a company with that state.
posted by Postroad at 7:22 AM on June 20, 2015 [2 favorites]


This is why it's good policy, provided you're in a job where the reprehensible and immoral practice of drug testing is imposed upon you, to always carry around a bottle of clean pee.
posted by You Can't Tip a Buick at 8:10 AM on June 20, 2015 [2 favorites]


I'm a software developer, the only time drug testing has ever come up in an employment context was when one company owner suggested that applicants be tested, and if they came up clean probably wouldn't be a good fit.

Seems to me that this is an economic opportunity: Yeah, some smokers are fuck-ups, but the correlation is likely way lower than the economic discounting. Want some good workers for cheaper? Advertise that you don't drug test. Kinda like hiring people with tattoos, or hiring women or minorities, this is your chance as an employer to scoop up people who are under-valued in the market place.
posted by straw at 8:36 AM on June 20, 2015 [11 favorites]


Buick, they don't let you take anything into the rest room where you pee and there's a thermometer strip on the side of the collection cup to ensure that it's at body temperature.
posted by octothorpe at 8:37 AM on June 20, 2015 [1 favorite]


So what's going to happen when marijuana is legalized on a federal level? It's not like marijuana users are going to become a protected class. Unless drug testing by employers is banned outright, the biggest, most conservative, most exploitative employers (Walmart, I'm looking at you) are just going to keep testing applicants, and we end up with de facto prohibition for everyone except the privileged classes.
posted by Faint of Butt at 8:39 AM on June 20, 2015 [5 favorites]


octothorpe and buick, Mike Tyson has admitted/claimed he was high on drugs during major fights, and used a fake penis to avoid detection.
posted by Sir Rinse at 8:45 AM on June 20, 2015


Word on the street (or word at the CLE on the subject I attended yesterday) is that the lawful activities statute may well be amended next legislative session to clarify whether "lawful" refers to federal or state law, and that if this decision had come down before the session ended a couple of weeks ago, we'd likely have seen a bill on the subject already.

Apparently that statute was originally meant to protect the rights of tobacco smokers, as hiring smokers might increase employers' health insurance costs (but of course smoking tobacco is entirely legal, even if it is directly outside my open window grarrrr). AFAIK neither Colorado's medical nor recreational marijuana laws do anything to prevent employers from firing users (and I know the recreational law is fairly clear on that), so the lawful activities statute was the way this case had to go.

This is why it's good policy, provided you're in a job where the reprehensible and immoral practice of drug testing is imposed upon you, to always carry around a bottle of clean pee.

... No. I don't think I'll be doing that.
posted by asperity at 8:46 AM on June 20, 2015


I'm a software developer, the only time drug testing has ever come up in an employment context was when one company owner suggested that applicants be tested, and if they came up clean probably wouldn't be a good fit.

That's kind of funny considering my last job with a small software developer. The dev and IT departments were full of weed smokers, including the CTO. There was no way a drug testing policy would even be considered there.
posted by Thorzdad at 8:46 AM on June 20, 2015


CO law would have protected the worker from being fired had the weed not been illegal under Federal law.

Colorado could also change its statute so that smoking pot off duty can't be grounds for termination. No federal fix needed for this particular issue.
posted by jpe at 8:55 AM on June 20, 2015 [6 favorites]


From what I remember from college, it's not even possible to understand object-oriented programming languages or pointers without some kind of mind-altering substance being involved. (The only state-sanctioned one is Diet Coke.)
posted by delfin at 8:55 AM on June 20, 2015


Colorado should enact legislation to make marijuana testing by employers, either as a prerequisite, or antirequisite to employment, illegal. Colorado would also have to make it illegal for employers to ask if it is OK to test for marijuana. They would also have to mandate drug tests that exclude marijuana as a value on lab results.

It seems possible for female testees to carry an intravaginal container of pre-warmed, clean urine, and I am sure there is at least one place for men to conceal theirs.

I see a fortune just out of my reach, in the clean pee, container business.
posted by Oyéah at 8:56 AM on June 20, 2015


I think this claim is going to require a pretty detailed justification, rather than just an assertion.

There's a CO statute saying that people can't be fired for the "lawful" off-duty activities. The question for the court was whether "lawful" in that statute means stuff that's legal under state law only or whether it includes federal law.

If the statute were written the way the MN statute is and expressly said that smoking pot isn't grounds for termination, then the decision comes out the other way.
posted by jpe at 8:59 AM on June 20, 2015


I used to work for a small consulting shop up on the Bay Area and there was much panic when we were acquired as my fun loving co-workers up North were told failing the test meant withdrawal of the offer.

Said acquisition just so happened to go through delays till everyone magically passed. I've since moved jobs and had to take another drug test for the new job, this time with no notice. The commonality is both were Midwest companies where the culture might be slightly different.

Also for some reason, this is seen as a prerequisite for government contracts in my business. I don't know if people on government jobs get tested routinely.
posted by viramamunivar at 9:15 AM on June 20, 2015


This case is more egregious because Coats is a quadriplegic who uses marijuana to control seizures (there is actually a prescription drug based on cannabidiol for this purpose) and he works as a telephone rep for Dish Networks. Can you really demonstrate harm to company, customer, or himself, assuming his job performance is satisfactory otherwise? If he had instead violated say, federal tax law, would there be any more harm?

This decision may be legally sound, but morally it is vacant except to a federalist so dedicated that they would make Alexander Hamilton blush.
posted by RobotVoodooPower at 9:30 AM on June 20, 2015 [17 favorites]


Yep. If you think this is the right decision you're on the wrong side of history. It's not about dry grudging acceptance of the letter of the law. The Colorado supreme court let down the citizens who have spoken twice... if law was a mechanical robot that plays By The Rules, Guys we wouldn't be having this conversation at all.
posted by aydeejones at 9:59 AM on June 20, 2015 [2 favorites]


octothorpe: no shit? I'm a dyed in the wool west coaster software guy and have worked in Seattle, Portland, San Francisco and L.A (a couple of those being very corporate gigs) and the only time it has ever come up was a joke about how it wouldn't work because it would eliminate half of the talent pool, because it's hard enough to find a coder who knows what they are doing.
posted by lkc at 10:05 AM on June 20, 2015 [5 favorites]


I don't know if people on government jobs get tested routinely.

It depends on the agency and the clearance you hold. Before moving into the private sector, I was a Federal contractor for over a decade. The standard "Clearance" is really just Public Trust, and you have to submit to a standard SAMHSA 5 drug test prior to hiring. Every employment contract I ever had included a stipulation that I had to submit to further drug testing if requested by the agency, but that almost never happened. A lot of agencies do have ongoing randomized drug testing for higher level clearances, and if you have clearances with multiple agencies, you can end up getting tested a lot. I was selected for testing 3 times in a year once.

Incidentally, I meet a lot of Federal employees or contractors, and when I tell them that I've moved into the private sector, it's a good bet that the next thing out of their mouths is to excitedly ask me "So do you smoke pot now?"
posted by KGMoney at 10:07 AM on June 20, 2015 [3 favorites]


The Colorado supreme court let down the citizens

No, the legislature did. Or the voters let themselves down, since they passed an amendment that expressly stated that the amendment wasn't to be construed to prohibit employers from restricting pot use by employees.
posted by jpe at 10:18 AM on June 20, 2015 [1 favorite]


Well if the "never tax us rich folks" plan continues to spread as policy, then the sales tax on legal weed will be soooo attractive that the powers that be will "see" things a little differently, see actions in Alaska right now thinking the pot taxes = infinite income. In this new America where $ = everything.
posted by Freedomboy at 10:22 AM on June 20, 2015


Clearly what is legal within a state can not be called illegal by a company with that state.

This is true if and only if state law is the only thing that governs whether or not something is illegal. Since there's also federal law to take into account, it's false.
posted by asterix at 10:23 AM on June 20, 2015 [5 favorites]


I know so many professionals who smoke, the drug test thing never seems to hit them as much. It's the lower level workers who get nailed by this stuff. Same as it ever was.

How many "professionals" do you know who operate heavy machinery in the workplace?
posted by Sys Rq at 10:25 AM on June 20, 2015


(I mean, I'm all for workers' rights, but one of those rights is not being killed by a forklift driven by someone who's high.)
posted by Sys Rq at 10:26 AM on June 20, 2015 [1 favorite]


If it were about optimizing safety, we'd test (more) industrial workers for alcohol too. You can pound a 12-pack at night and show up with a wicked hangover to operate that crane, no problem.
posted by RobotVoodooPower at 10:52 AM on June 20, 2015 [10 favorites]


A state law that purported to ban marijuana testing or disciplinary action for positive would be obviously unenforceable in the (many) cases where those things are required by federal law and quite possibly unenforceable in all other cases where an employer can cite contractual obligation or litigation exposure -- anyone facing federal court litigation for damages allegedly caused by an untested or positive tested employee probably wouldn't be allowed to cite the state law in de defense.
posted by MattD at 11:12 AM on June 20, 2015 [3 favorites]


RobotVoodooPower: If it were about optimizing safety, we'd test (more) industrial workers for alcohol too. You can pound a 12-pack at night and show up with a wicked hangover to operate that crane, no problem.

I was just thinking about this. I don't think you'd be allowed to operate that crane if you're visibly hung over, because if you fuck up, you can get people hurt and damage the workplace, setting the project back, but you can probably get by if you're a "functioning alcoholic." On the other hand, if you have residual traces of THC-COOH from "occasional use" days after using. Smoke a bit on the weekend, and you could fail a drug test in the week.

But those double standards aren't likely to go away, given that alcohol companies (among others) are against marijuana legalization and those liquor lobbies have significant financial clout.
posted by filthy light thief at 11:32 AM on June 20, 2015 [2 favorites]


So what's going to happen when marijuana is legalized on a federal level? It's not like marijuana users are going to become a protected class.

Users of medical marijuana would be protected. You can currently test positive for amphetamines or opiates in an employee drug screen, and as long as you can confirm a legal prescription, you're good to go. I don't think screeners are even permitted to notify the employer in those cases, lest they run afoul of the ADA. Recreational users would probably be out of luck, though.

If it were about optimizing safety, we'd test (more) industrial workers for alcohol too. You can pound a 12-pack at night and show up with a wicked hangover to operate that crane, no problem.

I know a guy that got fired from his job as a nuclear engineer for showing up to work hungover. They pulled him for a urine test and his alcohol level was over company limits.
posted by dephlogisticated at 11:35 AM on June 20, 2015 [2 favorites]


The drug testing industry has its own lobbyists, too, that don't get much coverage outside of paid PR channels.

In 2002, a representative from the influential drug-testing management firm Besinger, DuPont & Associates heralded schools as “potentially a much bigger market than the workplace.”
posted by RobotVoodooPower at 11:44 AM on June 20, 2015 [3 favorites]


My current employer, a huge hospital system, not only tests for drugs but recently banned all smoking by employees during business hours. So no smoke breaks or smoking with your lunch.
posted by octothorpe at 11:51 AM on June 20, 2015


I'm a consultant, with decades of experience, and on a few occasions where I've considered a corporate berth at director level, I've been asked to drug test. I've always refused, as has been my policy since the 80s when Saint Ronny and the Noes decided to push this particular flavor of repression. Because fuck that noise. My employer has zero rights when it comes to my personhood, from my perspective. But then, I'm a big fan of autonomy.

Point being, it isn't just Joe-jobs that get tested. Most jobs involving government contracts will test up and down the corporate ladder.

This ruling, however, seems especially egregious given that it was a medical user, rather than recreational, and given that his job certainly carried no risk of harm to himself or others, even if he was totally baked at work. Hell, I would support all people forced to work customer service jobs being allowed to light up, cause that job must really suck.
posted by dejah420 at 11:52 AM on June 20, 2015 [7 favorites]


Its been my understanding that a primary driver of drug testing in the workplace is medical insurance, ie a workplace can have lower insurance costs if they can claim to have a drug free workforce.
posted by Ansible at 12:19 PM on June 20, 2015 [1 favorite]


I know it's tempting to conflate this with recreational usage, but it bears repeating that this is medical marijuana. I know someone who is involved in this case, and according to them, Coats is a model client for a test case like this. He is likeable and well spoken, he's a good worker, he suffers from severe, permanent medical issues that greatly affect his quality of life, and medical marijuana has been one of the few things that can provide him some relief.

The legal status of recreational marijuana is a worthy subject, too, and testing for recreational drugs in the workplace is a sloppy and often misused tool, but this isn't about that. This is a much higher priority issue. It's about access to medical care and reasonable workplace accommodations, and it needs to be addressed on its own merits rather than being rolled into issues with recreational usage.
posted by ernielundquist at 12:42 PM on June 20, 2015 [11 favorites]


Buick, they don't let you take anything into the rest room where you pee and there's a thermometer strip on the side of the collection cup to ensure that it's at body temperature.

I'm not going to do the Googling for you, but let me just assure you, those who have to test frequently have a variety of products available to them, should they want to use them, that address these issues. There are message boards. Thankfully I've never had to worry about it. Aside from the initial test, I've never had an employer test me; it costs them money and they save that for folks operating heavy machinery and/or showing signs of trouble. And I've never been one to party much anyway.

This guy was a good test case, but I don't think the judges had much choice in their decision. Hopefully this can be part of the push for legalization, though.
posted by emjaybee at 12:59 PM on June 20, 2015 [1 favorite]


Thank heavens the Broncos and the Rockies can stay drug free!

(I heard the NBA doesn't test for weed.)
posted by bukvich at 1:28 PM on June 20, 2015


It seems like the most direct solution to this problem would be reclassify marijuana so that doctors can legally prescribe it, which would afford medical users all the protections that medical users of other drugs have. It's ridiculous that it's a Schedule I drug. Attempts to reclassify it have been unsuccessful so far, but that would probably be the best approach in terms of securing patients' access to medical treatment.

Recreational use can be addressed separately. It's kind of ridiculous for employers to be drug testing people for drugs that remain in the system, and it just seems silly and expensive for companies to do that. And from what I have heard, one thing companies do is to spot test employees who are injured on the job. But marijuana stays in the system for long enough that any casual recreational user is likely to show up positive, so a lot of them end up paying for medical care out of pocket rather than filing a workers' comp claim. I don't know if this is the employers' intent, but I do know that's an effect.

That really sucks, and it's ridiculous, but protecting medical users is much more important and involves completely different issues.
posted by ernielundquist at 1:40 PM on June 20, 2015 [1 favorite]




It seems like the most direct solution to this problem would be reclassify marijuana

The fact that it's schedule I **STILL** is clear evidence of bad-faith on the part of the legislature. If people were serious about getting rid of the number one reason to hassle black kids, they'd have done it already.
posted by mikelieman at 2:22 AM on June 21, 2015 [4 favorites]


Dish has went out of their way to make the entire state think of them as awful employers. I'm looking forward to the next time they try to sell me on their service and I get to give them a piece of my mind.
posted by nickggully at 1:50 PM on June 21, 2015 [1 favorite]


Yep. If you think this is the right decision you're on the wrong side of history. It's not about dry grudging acceptance of the letter of the law. The Colorado supreme court let down the citizens who have spoken twice... if law was a mechanical robot that plays By The Rules, Guys we wouldn't be having this conversation at all.

That is exactly the Colorado Supreme Court's job. Where the legislature has spoken clearly -- and here, I'd argue that it has -- the Supreme Court's job is to apply the law to the facts. If that produces the "morally wrong" result, then it's up to the legislature to amend the law.
posted by craven_morhead at 10:34 AM on June 22, 2015 [1 favorite]


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