Tag Archives: marijuana

June 5, 2017

Positive Marijuana Drug Tests Up By 11% in Colorado, According To Recent Report

By Mark Wiletsky

Positive results from workforce drug tests are at the highest rate in twelve years, according to the recently released Quest Diagnostics Drug Testing Index. Of particular significance to Colorado employers is the increase in positive marijuana results in urine drug tests in 2016 – the first year of results after Colorado legalized recreational marijuana use.

Marijuana Testing Methods Show Varied Positivity Rates

In creating its annual report, Quest Diagnostics analyzes more than ten million drug test results from tests it conducted on behalf of U.S. employers. Positive results for marijuana for the general U.S. workforce increased significantly over the past few years, with the percentages of positive marijuana results varying by the method of testing, as follows:

  • Oral fluid testing: up nearly 75% from 2013 (5.1%) to 2016 (8.9%)
  • Hair testing: up over 4% from 2015 (7.0%) to 2016 (7.3%)
  • Urine testing: up 4% from 2015 (2.4%) to 2016 (2.5%)

In Colorado, the increase in positive marijuana urine tests was a striking 11% from 2015 (2.61%) to 2016 (2.9%). The positive marijuana urine test results also increased significantly by nine percent from 2015 to 2016 in Washington state, where recreational marijuana also was legalized. Whether these state increases can be explained by the legalization of recreational pot is unclear, but both states reflected increased marijuana positivity higher than the national increase for the same years.

Nationwide Increase In Cocaine and Methamphetamine Positivity

The recent Quest report revealed that the positivity rate for urine testing for cocaine increased twelve percent in 2016 for the general U.S. workforce. While that annual percentage increase is high, the percent of U.S. workers who tested positive for cocaine in a urine test by Quest in 2016 was a relatively low 0.28 percent.

The results for amphetamines, which includes amphetamine and methamphetamine, increased more than eight percent in urine testing from 2015 to 2016 in the general U.S. workforce. Looking at the increase over the last four years, methamphetamine positivity in urine testing rose 64 percent. In oral fluid testing, those numbers are even higher as methamphetamines positivity increased 75 percent between 2013 (0.24%) and 2016 (0.42%).

Here is a look at an infographic from Quest Diagnostic regarding the results from its most recent report:

Workforce Drug Testing Index: As overall substance abuse rises across the United States, drug testing programs continue to play an important role in helping to create safe, drug-free workplaces. (PRNewsfoto/Quest Diagnostics)

Drug Testing Considerations

With positive drug test results on the rise, more employers will likely face the tricky employment decisions associated with positive tests. Here are some legal issues and best practices to consider:

  • Have a written, zero tolerance drug policy prohibiting employees, while on company premises or while engaged on company business, from (a) the use, possession, sale, and distribution of illegal drugs, and (b) being under the influence of illegal drugs. Illegal drugs should be defined as any substance that is illegal under either federal or state law as well as prescription drugs prescribed to another person or that are taken in a dosage or manner that was not prescribed.
  • Consider whether you will require employees to report their use of prescription drugs that may affect their ability to safely perform their work duties, especially for those in safety-sensitive positions. Be careful, however, not to discriminate against employees who use prescription medications to treat a disability. You may need to make a reasonable accommodation when dealing with a disabled individual.
  • If you conduct drug tests, have a written policy outlining the following:
    • when tests are conducted (e.g., pre-employment, reasonable suspicion, random, post-accident, etc.)
    • consequences for failing a drug test, up to and including termination
    • notification that refusing a drug test will result in termination
    • any state-specific testing requirements
  • If an employee uses marijuana for medical purposes, consider whether any employment accommodation obligations exist under applicable law. Colorado’s medical marijuana law does not specify an accommodation requirement and thus far, Colorado courts have not imposed such a requirement. Some other state’s medical marijuana laws, however, do impose workplace accommodation obligations, so when faced with a positive marijuana drug test, be sure to consider any applicable laws.
  • Keep drug test results and any other medical information confidential. This means you should keep separate medical or drug testing files so that this information does not get put in an employee’s regular personnel file. Also limit the individuals who have access to this information.

By planning ahead with appropriate policies and knowledge of your legal requirements, you will help your organization handle positive drug test results properly. When in doubt, consult with a competent employment lawyer.

June 15, 2015

Employee Termination For Off-Duty Marijuana Use Legal, Says Colorado Supreme Court

By Emily Hobbs-Wright

In a nationally awaited decision, the Colorado Supreme Court upheld an employer’s termination of an employee who tested positive for marijuana due to his off-duty, off-premises marijuana use. Issued on June 15, 2015, the Court’s narrow decision in Coats v. Dish Network, LLC turned on the fact that marijuana use remains illegal under federal law. Construing the term “lawful” to encompass activities that are permitted by both state and federal law, the Court ruled that Coats’s off-duty marijuana use was not a protected activity within the meaning of Colorado’s lawful activities statute because marijuana use remains unlawful under the federal Controlled Substances Act. The Court refrained, however, from addressing the issue of whether the state’s Medical Marijuana Amendment confers a state Constitutional right to such use.

Although binding only on Colorado, this decision provides employers nationwide guidance in enforcing drug-free workplace policies as more and more states legalize some form of marijuana use.

Coats v. Dish Network: Employee Not Impaired By Marijuana At Work

Dish Network, LLC terminated Brandon Coats, a quadriplegic, for violating its zero tolerance drug policy after he tested positive for marijuana in a random workplace drug screen. Coats claimed he only used marijuana after work at home to treat painful muscle spasms caused by his quadriplegia. He stated that he did not use marijuana on Dish’s premises and was never under the drug’s influence at work. 

After his termination, Coats sued Dish claiming his termination violated Colorado’s lawful activities statute, which broadly prohibits discharging employees for engaging in “any lawful activity off the premises of the employer during nonworking hours.” Colo. Rev. Stat. § 24-34-402.5(1). Coats argued that because his use of marijuana was legal under state law, he engaged in a lawful off-duty activity for which he could not be discharged. He further argued that the phrase “lawful activity” in Colorado’s statute must be defined in reference to state, not federal law.  

Dish countered by focusing on the fact that marijuana remains illegal under federal law, and therefore, its use could not be a “lawful activity” under the Colorado statute, making Coats’s termination legal. The trial court agreed with Dish and dismissed the lawsuit finding that marijuana use is not lawful under state law. A divided Colorado Court of Appeals upheld the trial court’s decision on separate grounds (i.e., that in order for an activity to be “lawful” it cannot contravene state or federal law), which the Colorado Supreme Court has now affirmed. 

“Lawful” Means Permitted By Both State and Federal Law

The Colorado lawful activities statute does not define the term “lawful.” Coats argued it should be read as limited to activities that are lawful under state law, which could include legalized marijuana use. The Court disagreed. It looked to the plain language of the statute to conclude that the term “lawful” means permitted by law, or not contrary to, or forbidden by law. The Court refused to impose a state law limitation to the term, ruling that because marijuana use is unlawful under federal law, it is not a “lawful” activity under the Colorado statute.

A successful appeal of the Court’s interpretation of the lawful activities statute to the U.S. Supreme Court is unlikely as the Colorado Supreme Court based its decision on a straightforward common sense construction of a state statute, which is deemed to be within the state’s highest court’s jurisdiction to decide.

Coats’s Impact on Marijuana in the Workplace

The Coats decision is significant to Colorado employers because it confirms that employers are entitled to enforce drug-free workplace policies without fear of violating the state lawful activities statute. Although this case dealt with marijuana use for medical purposes, the Court’s reasoning should apply to recreational marijuana use as well.

Notably, the Court did not decide whether off-duty marijuana use is protected under Colorado’s Medical Marijuana Amendment, which arguably only creates an exemption from criminal prosecution. Any such narrow ruling would almost certainly have spawned additional litigation over the different wording in Colorado’s more recent Recreational Marijuana Amendment, and whether that amendment made off-duty marijuana use “lawful.”

While the Coats decision resolves an important open issue under Colorado law, Colorado employers should continue to exercise caution when dealing with employee marijuana use outside the workplace. Drug testing policies should provide employees with clear notice of consequences for off-duty marijuana use. Further, employers must enforce zero tolerance policies consistently in order to avoid discrimination claims brought under statutes such as the Americans with Disabilities Act and the Colorado Anti-Discrimination Act. When dealing with an employee who uses marijuana off-duty and off-premises, employers should carefully evaluate the facts of each situation and consider the risks of violating other employment laws before making adverse employment decisions.

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August 29, 2013

DOJ Will Not Challenge State Marijuana Legalization Laws – New Federal Enforcement Policy Unlikely to Affect Colorado Employers

By Emily Hobbs-Wright 

Cannabis-leaf-mdOn August 29, 2013, the U.S. Department of Justice (DOJ) announced that it will not challenge the state ballot initiatives in Colorado and Washington that legalize the possession and use of small amounts of marijuana under state law.  The DOJ makes clear, however, that marijuana remains an illegal drug under the federal Controlled Substances Act.  This clarification means Colorado employers may still enforce their drug-free workplace policies and take appropriate action when an employee or applicant tests positive for marijuana. 

DOJ Expects States to Enforce Strict Regulatory Schemes 

In its August 29, 2013 Guidance Regarding Marijuana Enforcement, the DOJ identifies eight enforcement priorities for federal law enforcement and prosecutors, such as preventing distribution of marijuana to minors, preventing the diversion of marijuana from states where it is legal to other states, and preventing drugged driving and the exacerbation of other public health consequences of marijuana use.  The DOJ states that it expects that states and local governments to not only establish, but also enforce robust controls in their marijuana regulatory schemes to meet its federal objectives.  The guidance instructs federal prosecutors to review marijuana cases on an individual basis, weighing all available information and evidence but to no longer “consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities . . .”  The DOJ further stated that if states fail to develop or enforce a strict regulatory scheme and the stated harms result, federal prosecutors will step in to enforce federal marijuana priorities and may challenge the regulatory schemes in those states. 

Courts in Colorado Uphold Employer Terminations for Employee Marijuana Use 

In April 2013, the Colorado Court of Appeals ruled that terminating an employee who tested positive for marijuana following his off-duty, off-premises use of medical marijuana did not violate Colorado’s lawful activities statute.  Coats v. Dish Network LLC, 2013 COA 62.  Brandon Coats, a quadriplegic who obtained a license to use medical marijuana under Colorado’s Amendment 20, was fired for violating his employer’s drug policy after testing positive for marijuana. Coats asserted that he never used marijuana on his employer’s premises, was never under the influence of marijuana at work and never used marijuana outside the limits of his medical marijuana license.  He sued his employer, Dish Network, alleging that his termination violated Colorado’s lawful off-duty activities statute, CRS § 24-34-402.5(1), which prohibits an employer from discharging an employee for engaging in “any lawful activity off the premises of the employer during nonworking hours.”

The Coats court looked to the plain meaning of the term “lawful” in the statute and decided that “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.”  Because marijuana was, and remains, illegal under federal law, the court held that marijuana use is not a “lawful activity” under the Colorado lawful activities statute and therefore, the employer did not violate the statute when it terminated him for testing positive for marijuana.

Earlier this week, the federal district court in Colorado ruled that enforcement of a drug-free workplace policy is a lawful basis for an employer’s decision to terminate an employee who tests positive for marijuana, whether from medical or any other use.  Curry v. MillerCoors, Inc., No. 12-cv-2471 (Order Granting Motion to Dismiss, D.Colo. Aug. 21, 2013). In granting the employer’s motion to dismiss, the federal court rejected all of the former employee’s claims related to his medical use of marijuana that resulted in a positive drug test and his termination under the employer’s drug policy.  Significantly, the court dismissed his disability discrimination claim under Colorado’s anti-discrimination statute as a matter of law, finding that it was lawful for the employer to discharge the employee under its drug-free workplace policy despite the employee’s allegation that he was terminated because of using medical marijuana to treat disabling medical conditions.  Judge John L. Kane wrote “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.”  In dismissing the employee’s claim for violation of Colorado’s lawful activities statute, Judge Kane relied on the Coats decision and similarly ruled that because marijuana use is illegal under federal law, the employee’s medical marijuana use was not a “lawful activity” under the statute. 

DOJ’s Announcement Should Not Change Workplace Decisions 

The DOJ’s announcement of relaxed marijuana enforcement in states that have legalized marijuana does not alter employers’ ability to enforce their drug-free workplace policies.  On the contrary, because the DOJ reinforced that marijuana remains an illegal drug under federal law, the analysis used by courts in Colorado to uphold termination decisions based on positive drug tests should continue to apply.  Employers should create or revise their drug policies to state that use of any drug that is illegal under state or federal law will violate the policy.  Employers then should enforce their policies in a consistent and uniform manner, regardless of the legalization of marijuana use in Colorado.

Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

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November 2, 2012

Marijuana in the Workplace: Amendment 64 – Same Can, More Worms for Colorado Employers

Amendment 64 would, among other things, allow individuals age 21 and over to possess and use one ounce or less of marijuana. If the Amendment passes next week, employers will face increased uncertainty when it comes to the enforcement of workplace drug testing policies. A reckoning is inevitable because the debate over the scope of employers' rights to terminate workers who use marijuana outside of work and then test positive in violation of company policy has been brewing for several years in the context of Amendment 20 (which decriminalized the use of medical marijuana by registered patients). Amendment 64 does not clarify the extent of employers' right to terminate for marijuana use. On the contrary, it fans the flames by incorporating language that fueled employment litigation in the medical marijuana context following Amendment 20's passage, and by extending coverage to the general workforce, not just a handful of employees who are registered medical marijuana patients.

The debate to date

In November 2000 Colorado voters approved Amendment 20, which authorizes patients with certain debilitating medical conditions to receive from the State of Colorado a registry identification card allowing them to obtain and use marijuana without threat of criminal prosecution by the state authorities (but not the federal government).

With regard to employers' rights, Amendment 20 states: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace." Both sides of the debate agree that this language preserves employers' right to prohibit employees from using marijuana at work, regardless of whether employees hold medical marijuana cards.

The parties sharply diverge, however, on the subject of whether Amendment 20 preserves employers' right to prohibit medical marijuana users from reporting to duty under the influence of, or having trace amounts of, the drug in their systems due to off-duty use. This issue typically arises when an employee tests positive for THC (the psychoactive constituent found in marijuana) in a random or post-accident workplace drug screen. Because most workplace drug testing policies prohibit employees from using illegal drugs as defined by federal or state law, employees are typically terminated following such positive results.

In recent years, medical marijuana cardholders who have been terminated from jobs for failing workplace drug screens have argued that the "in any workplace" language allows employers to regulate medical marijuana use at work, but not during non-working hours. These legal arguments take many forms, but the predominate themes in litigation to date are that (1) medical marijuana use is not illegal under state law and (2) employers should not be permitted to regulate an employee's off-duty medical marijuana use absent evidence that a worker is actually impaired at work. One obvious Colorado law that is triggered in the context of this argument is Colorado's lawful off-duty activity statute, which makes it unlawful for employers to terminate workers for engaging in lawful activities outside of work during non-working hours.

On the flipside, employers assert that Amendment 20 does not place any obligation upon companies to accommodate employees who use medical marijuana. Employers are free to enforce their drug testing policies and to prohibit the use of illegal drugs, including marijuana, whether medical or not, even when the use occurs off the worksite during non-working hours. Employers further assert that the Amendment is intended to provide certain individuals with an affirmative defense against criminal prosecution, but not to restrict employers' rights. Moreover, because marijuana is still illegal under federal law, an employee's use of marijuana outside of work is not a "lawful" activity that is covered by Colorado's lawful off-duty activity statute.

To date, Colorado courts have not squarely addressed whether employers can lawfully terminate employees who use medical marijuana outside of work during non-working hours and subsequently fail workplace drug screens. The Colorado Court of Appeals came close to weighing in on the issue in 2011 when it upheld the Colorado Industrial Claim Appeals Office's (ICAO's) decision to deny unemployment benefits to a worker, Jason Beinor, who was terminated for violating his employer's zero-tolerance drug policy after testing positive for marijuana in a random drug test. See Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011).

Beinor argued that the Colorado Constitution protected his marijuana use because he used marijuana for medicinal purposes outside of work and was in the process of obtaining a registry card. In its opinion, the Court of Appeals made the following observations: (1) marijuana remains a Schedule I controlled substance under federal law and cannot be lawfully "prescribed;" (2) Amendment 20 provides an exemption from criminal prosecution – it does not grant medical marijuana users the "right to use the drug in any place or in any manner;" and (3) medical marijuana users do not have an "unfettered right to violate employers' policies and practices regarding use of controlled substances." However, the court cautioned that its holding was limited to the issue of whether the ICAO properly denied unemployment benefits. By contrast, the court was "not deciding whether the amendment limits an employer from discharging an employee for using medical marijuana." Thus, while the decision provides some helpful guidance into the direction Colorado courts would likely take in the future if faced with the issue, the debate concerning the extent of employers' right to terminate employees for engaging in off-duty use of medical marijuana remains unresolved.

Employers' rights under Amendment 64

Amendment 64 does not provide any additional guidance on this issue. The Amendment contains three provisions that address employers' rights. First, like Amendment 20, Amendment 64 does not require employers to "permit or accommodate" the use of marijuana "in the workplace." Second, employers may have policies restricting the use of marijuana by employees. Third, employers may prohibit and regulate the "possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana" on their property.

Thus, like Amendment 20, Amendment 64 opens the door for employees to argue that employers may regulate marijuana use inside the workplace, but may not impede employees' right to use marijuana outside of work. However, unlike Amendment 20, which provides an affirmative defense to criminal prosecution, Amendment 64 would decriminalize marijuana use under state law. Additionally, Amendment 64 purports to allow employers to retain policies restricting employees' use of marijuana; however, the Amendment does not specify whether such restrictions may lawfully extend to off-duty use. If the arguments lodged in the context of Amendment 20 are any indication, employees who are terminated for testing positive for marijuana will likely continue to argue that employers' policies may only regulate use and possession on company property.

Employers' drug testing policies at center stage

If Amendment 64 passes, employers' drug testing policies will be at the heart of workplace disputes over employees' marijuana use. Because marijuana use is expected to grow if the Amendment passes, employers may expect that a greater number of employees will likely test positive for the drug in random screens. This increase in positive tests, in turn, will likely lead to a greater number of challenges by employees terminated for violating their employers' zero-tolerance policies. Further, because marijuana use would be lawful at the state level, employers would no longer be able to argue, as they did in the Amendment 20 context, that marijuana is illegal under both state and federal law.

Moreover, if Amendment 64 becomes law, employees who lose their jobs because of a drug screen revealing trace amounts of marijuana in their urine will likely argue that their employers' drug testing programs infringe upon their right under the Colorado Constitution to use marijuana outside of work. In other words, they (or their advocates) will likely take the position that, if a worker is not under the influence of marijuana at work and does not pose a safety risk, an employer may not lawfully terminate his or her employment. Workers will likely further argue that there must be outward signs of impairment at work in order for employers to legally terminate their employment.

Employers, on the other hand, will likely be forced to take a firm and even stance when interpreting and enforcing drug testing policies prohibiting the use of marijuana. Inconsistent application of such policies may expose companies to discrimination claims based on a "disparate impact" or other theory of discrimination. The practical problem that employers may face is that, unlike breathalyzer tests which can easily detect whether someone is under the influence of alcohol at work, urine tests cannot easily detect the level of marijuana impairment. Marijuana may be present in an individual's urine for several weeks. Blood tests may detect the level of marijuana in a person's system with greater accuracy, but they are more invasive and still do not pinpoint when a person actually used the drug. Further, impairment at work can go undiscovered until an accident occurs. This creates an unacceptable risk of exposure for companies which have a duty to protect employees and the public from harm. Policies that prohibit use altogether avoid these and other issues and allow employers to implement drug testing programs with greater efficiency.

Ultimately, marijuana remains a Schedule I controlled substance under federal law. Amendment 64 is clear on that point. Thus, if marijuana is legalized in Colorado, employers will need to take care to ensure that their drug policies expressly prohibit the use of illegal drugs as defined by federal law. Of course, employees who are fired or disciplined for testing positive for marijuana will still likely argue that federal law cannot usurp their right to use marijuana under Colorado's Constitution. However, employers may be able to justify their decision to continue enforcing drug testing policies through reference to federal supremacy or common sense arguments.

Bottom line

If Amendment 64 becomes law, it will ultimately be up to the courts or the legislature to settle the debate and provide employers with the clarity that the Amendment currently lacks. Resolving the unsettled issues could take months, or even years. In the meantime, employers would likely be in the trenches for the foreseeable future, incurring legal fees and spending more internal resources navigating employee grievances.