Published Date: 08/25/2014
By George Ports
CAI members, especially those with multi-state facilities, are beginning to ask CAI's Advice & Resolution Team about employer rights as they pertain to substance abuse polices in states where marijuana has been legalized. These new laws vary from allowing use of marijuana for medicinal purposes to recreational use.
Do employers still have the right to enforce substance abuse policies? From what this writer can ascertain, yes. Even in states such as Delaware and New Hampshire where medicinal marijuana is legal, employers are not required “to allow the ingestion of marijuana in any workplace or to allow any employee to work while under the influence of marijuana.” Delaware’s law does state, however, that an employee who is a registered qualified patient (one who has a legal marijuana prescription) shall not be considered to be under the influence solely because of the presence of metabolites or components of marijuana in his or her system.
There is a case pending before the Colorado Supreme Court that will determine employers’ rights in that state and possibly set a precedent for other courts to follow in states where the use of cannabis is legal (marijuana is legal in Colorado for medicinal and recreational use). An employee of Dish Network, a paraplegic, used marijuana to ease his back spasms. It was reported that the employee had informed his employer of his use, however, when the employee tested positive from a random test, the employee was terminated. Dish representatives explained to the employee that he could reapply for his job if he could pass a drug test. The employee sued Dish Network claiming that marijuana was like any other medicine.
The employee lost his case in a lower level state court and at the appellate level. It was ruled by the appellate court’s three judge panel that although marijuana was legal in Colorado, it was illegal under federal law upholding Dish Network’s right to terminate his employment. The employee has appealed to the Colorado Supreme Court.
John Suthers, Colorado’s Attorney General, has filed an amicus brief in support of Dish Network and the decision of the appellate court. In his brief, Suthers states that Coloradans do not have the right to use marijuana off the job if their employer has a zero-tolerance drug policy.
This is the first time a case of this nature has been presented to the Colorado Supreme Court. Employers across the country, especially where marijuana has been legalized, will be following this case with great interest. To view a map showing the states that have legalized marijuana, go to http://j.mp/sm-lm.
CAI will keep you informed in regard to the outcome of this case before the Colorado Supreme Court.