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Made in us
Proud Triarch Praetorian





http://www.denverpost.com/news/ci_28315256/colorado-supreme-court-affirms-lower-court-rulings-medical?source=infinite

Employers' zero-tolerance drug policies trump Colorado's medical marijuana laws, the Colorado Supreme Court ruled Monday.

In a 6-0 decision, the high court affirmed lower court rulings that businesses can fire employees for the use of medical marijuana — even if it's off-duty.

With the ruling, which was a blow to some medical marijuana patients and a sigh of relief to employers, Colorado became the first state to provide guidance on a gray area of the law.

The decision came nine months after the state's highest court heard oral arguments in Brandon Coats' case against Dish Network. Coats became quadriplegic in a car accident and used marijuana to control leg spasms. He had a medical marijuana card and consumed pot off-duty. He was fired in 2010 after failing a random drug test.

Brandon Coats listens as his attorney talks Monday about his case. Coats said he is disappointed in the state Supreme Court ruling that businesses can fire employees for the use of marijuana even if it's for medical purposes and even if it's done off-duty. (Kathryn Scott Osler, The Denver Post)
Coats, who was a customer service representative for Dish, challenged the Douglas County satellite TV company's zero-tolerance drug policy, claiming that his use was legal under state law. His firing had been upheld in both trial court and the Colorado Court of Appeals.

When the case went to the state Supreme Court, legal observers said the case could have significant implications for employers across Colorado. They noted that the ruling also could be precedent-setting as Colorado and other states wrangle with adapting laws to a nascent industry that is illegal under federal law.

At the crux of the issue was whether the use of medical marijuana — which is in compliance with Colorado's Medical Marijuana Amendment — was "lawful" under the state's Lawful Off-Duty Activities Statute.

"Therefore, employees who engage in an activity, such as medical marijuana use, that is permitted by state law but unlawful under federal law are not protected by the statute," Justice Allison H. Eid wrote in the opinion.

Current Colorado law allows employers to set their own policies on drug use.

Coats' attorney Michael Evans, of Centennial-based The Evans Group, called the decision "devastating."

He said he does not plan to take the case to the U.S. Supreme Court.

"You need the Colorado Supreme Court to stand up for its own laws," he said. "The U.S. Supreme Court is not going to do that."

Resolution at last

On Monday, Coats and his mother, Donna Scharfenberg, spent all morning refreshing the Colorado Supreme Court's website. When they finally read the ruling, there was 10 minutes of silence.

"It was just kind of shocking," Coats said. "There was a silent moment there for a long while."

It was a disappointing resolution to what has been a five-year battle for Coats, who is unemployed.

"This is a controversial issue," he said. "This is a hard case, and it was going to be a hard case to win. I was definitely hoping it would go the other way around.

"I was feeling like maybe, maybe, but it didn't go that way."

Officials with Douglas County-based Dish lauded the decision.

"We are pleased with the outcome of the court's decision today," the company said in a statement. "As a national employer, Dish remains committed to a drug-free workplace and compliance with federal law."

Colorado Attorney General Cynthia H. Coffman said the decision gives companies the freedom to craft their own employment policies concerning marijuana.

"Not every business will opt for zero-tolerance, but it is important that the latitude now exists to craft a policy that fits the individual workplace," she said.

A question for the legislature

When Colorado legalized recreational marijuana last year, employers across the state increased their drug testing, said Curtis Graves, an attorney for Mountain States Employers Council, referencing a workplace survey at the time. A year later, and with an unemployment rate below 5 percent, some employers have loosened the reins.
"We've seen a number of employers, particularly in hospitality ... who are actually omitting THC from a pre-employment drug screen," he said.

The market might dictate a further shift in the future.

Until then, people like Coats will have to consider other treatments or find a position that does not enforce a zero-tolerance drug policy, said Austin Smith, managing shareholder of employment law firm Ogletree Deakins' Denver office.

"It puts employees in a tough spot," said Smith, who watched the case closely but was not involved.

Sam Kamin, a University of Denver law professor, said the justices' decision comes as no surprise.

"It's easy to make too much of this decision," he said. "It really comes down to interpreting this one word ('lawful') in this one statute."

As a matter of statutory interpretation, the court got it right, he said.

But for Coats and medical marijuana advocates, this is a blow, Kamin said. He said he thinks the state legislature will take up the issue.

"I think (Coats') case is very sympathetic, and I think his case would be quite compelling before the legislature," Kamin said.

Six of the seven justices decided the case. Justice Monica Marquez recused herself because her father, retired Senior Judge Jose D.L. Marquez, was on the Court of Appeals panel that upheld Coats' firing.

Alicia Wallace: 303-954-1939, awallace@denverpost.com or twitter.com/aliciawallace

Excerpts from the Colorado Supreme Court decision

• "Colorado's 'lawful activities statute,' the term 'lawful' refers only to those activities that are lawful under both state and federal law."

• "Nothing in the language of the statute limits the term 'lawful' to state law. Instead, the term is used in its general, unrestricted sense, indicating that a 'lawful' activity is that which complies with applicable 'law,' including state and federal law. We therefore decline Coats's invitation to engraft a state law limitation onto the statutory language."

• "Coats does not dispute that the federal Controlled Substances Act prohibits medical marijuana use. The CSA lists marijuana as a Schedule I substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision."

• "Having decided this case on the basis of the prohibition under federal law, we decline to address the issue of whether Colorado's Medical Marijuana Amendment deems medical marijuana use 'lawful' by conferring a right to such use."


Well, it may be legalized but the fight is not over it seems. If you want to smoke for fun or you need it for medical reasons, you need to find a special job where they are fine with it.
   
Made in ca
Fixture of Dakka





Ottawa Ontario Canada

High court my ass, they don't even sound buzzed!

This message was edited 1 time. Last update was at 2015/06/16 14:42:57


Do you play 30k? It'd be a lot cooler if you did.  
   
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Decrepit Dakkanaut






New Orleans, LA

 Crablezworth wrote:
High court my ass, they don't even sound buzzed!


I see what you did there...

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Made in us
Confessor Of Sins




WA, USA

The ruling makes sense to me. After all, while alcohol is legal, that doesn't mean that employers have to keep someone visibly drunk on the staff. Medical or no, businesses have the right to screen and as the article points out, some are already beginning to shift away from screening for THC.

A rocky part of gray areas, to be sure, but I'm glad that the courts sided with the rights of the business in this instance.

 Ouze wrote:

Afterward, Curran killed a guy in the parking lot with a trident.
 
   
Made in us
Proud Triarch Praetorian





The problem is, you can drink as long as you are not drunk at work. However, you cannot smoke at any time in these circumstances because most drug tests for THC go back 30 days. So they are not really catching people high at work, they are just catching people using on their own time.

Edit: Added Most, because you can do a saliva test for THC that works about like a breathalyzer. Fun Fact: IL is moving to saliva test for DUIs for Marijuana.

This message was edited 1 time. Last update was at 2015/06/16 15:16:51


 
   
Made in us
Confessor Of Sins




WA, USA

But is that a failing of the law, or of the testing? I admit, I come from a biased perspective, I work in truck safety so I am always super high-strung about these sorts of things because if I am not tight, things slip through.

 Ouze wrote:

Afterward, Curran killed a guy in the parking lot with a trident.
 
   
Made in us
Proud Triarch Praetorian





 curran12 wrote:
But is that a failing of the law, or of the testing? I admit, I come from a biased perspective, I work in truck safety so I am always super high-strung about these sorts of things because if I am not tight, things slip through.


I think it is a couple of reasons honestly. Our understanding of the drug and how long it effects us needs to get better and then the law needs to catch up accordingly. But, based on what we do know at the moment, the laws are still lagging behind.
   
Made in us
Confessor Of Sins




WA, USA

I agree with you that our understanding of the drug is behind. After all, it has been demonized for what feels like generations, so I imagine that paints any kind of research onto it in a certain unfavorable light.

I think we need to break away the business policy from the law in this instance. The law is simply saying that the business has a right to uphold its zero-tolerance policy. The business is the one making calls of firing based on testing. Now (depending heavily on the nature of the job), a zero-tolerance policy for THC seems a bit harsh and, as we can see in the article, businesses are moving away from it, but the business still has the right to test. I think the issue here is not so much the court's decision, but the discussion that should come asking if businesses should test for THC.

 Ouze wrote:

Afterward, Curran killed a guy in the parking lot with a trident.
 
   
Made in us
5th God of Chaos! (Ho-hum)





Curb stomping in the Eye of Terror!

I think businesses need to be able to make such policies like these...

Especially if said business involves driving company vehicles and/or equipment operation.

Otherwise, the liability insurance would go through the roof.

Live Ork, Be Ork. or D'Ork!


 
   
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Confessor Of Sins




WA, USA

 whembly wrote:
I think businesses need to be able to make such policies like these...

Especially if said business involves driving company vehicles and/or equipment operation.

Otherwise, the liability insurance would go through the roof.


Very much this. There is no one-size-fits-all approach when it comes to drug testing. But the employer should have the right to set it, it should not be a government mandate.

 Ouze wrote:

Afterward, Curran killed a guy in the parking lot with a trident.
 
   
Made in us
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So the government should have the authority to dictate what happens on my personal time even though it does not effect work?

We may not know a lot about how marijuana effects us, but we do know that it can leave your system before you have to be at work. You do not smoke it and then stay high for 30 days, you come down.
   
Made in us
Confessor Of Sins




WA, USA

 Dreadwinter wrote:
So the government should have the authority to dictate what happens on my personal time even though it does not effect work?

We may not know a lot about how marijuana effects us, but we do know that it can leave your system before you have to be at work. You do not smoke it and then stay high for 30 days, you come down.


Nobody is saying that first thing. At all.

The ruling is that the individual employers have the right to set their testing policies.

 Ouze wrote:

Afterward, Curran killed a guy in the parking lot with a trident.
 
   
Made in us
Proud Triarch Praetorian





If I smoke recreationally on my own time and I am given a urine test which dates back 30 days and I fail it. I am fired. So, I have to either find a new job which is difficult or I have to not smoke.

How is that not dictating my personal life?
   
Made in us
Boosting Space Marine Biker




Texas

Some good points regarding the short comings of current D&A screening methods vs what is permissible.

As a HSE professional, I am very concerned about individuals showing up to work under the influence of anything that might impact their personal safety and/or the safety of those they work with so I am strongly in favor of the right to set D&A conditions for employment.

BTW our workplace also specifically prohibits the improper use of prescription medication and we educate employees that they need to let us know when using anything that is causing serious side affects, whether OTC or prescribed by their physician, so that we can make the appropriate accommodations. My employer is willing to work with individuals as much as possible because they understand the positive impact on productivity and retention that such a policy promotes. Employees don't need to tell us what they are taking or why, only the side effects they are experiencing. We may ask for a doctor's note to substantiate what their work restrictions should be, e.g. no standing for more than x amount of time, no driving heavy equipment, no working at heights, etc. I would think that this type of policy could easily be extended to the use of medically prescribed marijuana. That said, there is only so much accommodations that can be made and the business needs to have the right to layoff an employee who is not medically fit to work at that company and employers should have the right to set those conditions.

Ultimately there will be times where we have to make hard choices about the types of medication we take or other medical procedures we undergo and how it will impact our ability to work in our chosen field. You certainly don't want your employer to become involved in those decisions, but then employers should not have to accommodate your choice and its effects on your ability to do the job you were hired to do.


"Preach the gospel always, If necessary use words." ~ St. Francis of Assisi 
   
Made in us
Fixture of Dakka





CL VI Store in at the Cyber Center of Excellence

 Dreadwinter wrote:
So the government should have the authority to dictate what happens on my personal time even though it does not effect work?

We may not know a lot about how marijuana effects us, but we do know that it can leave your system before you have to be at work. You do not smoke it and then stay high for 30 days, you come down.


Your employer, not the gov't is making the call in this case. The gov't (via the court) is upholding your employer's right to do so. Plenty of jobs/employers who don't test or don't test for THC. You have the right to not work for an employer who does test for it.

And lets not forget, in this case, like it or not, the employer has a policy to fire folks using a substance the Feds have on schedule I of illegal/regulated drugs. Alcohol is NOT a schedule 1 drug. You really cannot compare them from a legal aspect.


Every time a terrorist dies a Paratrooper gets his wings. 
   
Made in de
Decrepit Dakkanaut





Not seeing the problem. If you work at a company with a clear zero-tolerance on drugs policy, decide to do drugs, get tested positive and then kicked out, you have zero reasons to complain.


Automatically Appended Next Post:
 Dreadwinter wrote:
If I smoke recreationally on my own time and I am given a urine test which dates back 30 days and I fail it. I am fired. So, I have to either find a new job which is difficult or I have to not smoke.

How is that not dictating my personal life?


You, personally, decided to work at the company. You, personally, also decided that doing drugs while working for a no-drugs policy company was a good idea. You, personally, are to fully take the blame.

This message was edited 1 time. Last update was at 2015/06/16 16:10:41


   
Made in us
5th God of Chaos! (Ho-hum)





Curb stomping in the Eye of Terror!

Look at it from the employer's perspective.

It's a major lawsuit if an employee get's injured/injured someone and it's found that THC is in the employee's system.

In fact, in the event of workers on-job injury, insurers REQUIRES the company to perform a drug test. If anything is found, then the company (and not the insurer) is on the hook.

Live Ork, Be Ork. or D'Ork!


 
   
Made in us
Proud Triarch Praetorian





We glossing over the fact that THC does not stay in your system indefinitely and you can work sober, it is the employer that is using a test that makes it impossible to differentiate?

Of course people should get in trouble for coming to work stoned/drunk. However, they should not get in trouble if they do it at home. There is a difference.
   
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Curb stomping in the Eye of Terror!

 Dreadwinter wrote:
We glossing over the fact that THC does not stay in your system indefinitely and you can work sober, it is the employer that is using a test that makes it impossible to differentiate?

Of course people should get in trouble for coming to work stoned/drunk. However, they should not get in trouble if they do it at home. There is a difference.

No, the problem is that you can't prove that you weren't stoned on the job.

This message was edited 1 time. Last update was at 2015/06/16 16:29:42


Live Ork, Be Ork. or D'Ork!


 
   
Made in us
Proud Triarch Praetorian





You can, saliva. It works for DUIs, why not work?
   
Made in us
5th God of Chaos! (Ho-hum)





Curb stomping in the Eye of Terror!

 Dreadwinter wrote:
You can, saliva. It works for DUIs, why not work?

I'm pretty sure it isn't very accurate. Lemme doublecheck.

Live Ork, Be Ork. or D'Ork!


 
   
Made in us
Proud Triarch Praetorian





 whembly wrote:
 Dreadwinter wrote:
You can, saliva. It works for DUIs, why not work?

I'm pretty sure it isn't very accurate. Lemme doublecheck.


Don't worry, I got you.

http://www.forensicfluids.com/oral_v_urine.htm
   
Made in us
Decrepit Dakkanaut






New Orleans, LA

 Dreadwinter wrote:
If I smoke recreationally on my own time and I am given a urine test which dates back 30 days and I fail it. I am fired. So, I have to either find a new job which is difficult or I have to not smoke.

How is that not dictating my personal life?


Why does this sound like a new thing for you? This has been going on for decades. Your place of employment clearly lays out their drug testing policy when you apply for the job. If you agree to those terms, then don't do drugs.

I've been randomly tested 3 times at my current place of employment. I have no problem with it. They do the hair test that can go back a few months, IIRC.

The only new thing about this is that at the time of his firing, CO had legalized medicinal marijuana. I'm of the opinion that if he was given a subscription for it by his doctor, and was legal at the time for that use, then it shouldn't be terminated.

Edit: Obviously, if he was stoned at work, then he should be gak-canned, but that's a how different discussion.

This message was edited 2 times. Last update was at 2015/06/16 16:47:22


DA:70S+G+M+B++I++Pw40k08+D++A++/fWD-R+T(M)DM+
 
   
Made in us
5th God of Chaos! (Ho-hum)





Curb stomping in the Eye of Terror!

 Dreadwinter wrote:
 whembly wrote:
 Dreadwinter wrote:
You can, saliva. It works for DUIs, why not work?

I'm pretty sure it isn't very accurate. Lemme doublecheck.


Don't worry, I got you.

http://www.forensicfluids.com/oral_v_urine.htm

Oh... now I remember why it isn't commonly used.

You still can't tell if you're stoned. All these tests can show is that you have THC present in your saliva.

So, instead of trying to find that fine line of whether or not you're impaired, the company policy is for any trace.


Live Ork, Be Ork. or D'Ork!


 
   
Made in us
Proud Triarch Praetorian





I was referring to the situation that he is in, not myself personally. I can see how it might have come off like that. If I get drug tested and fail, I am in a state it is not legal recreationally and I have no medical card. I fully expect to be terminated.

This man was prescribed marijuana by a doctor. But no, the job says he cannot have that medicine! How is that right?


Automatically Appended Next Post:
 whembly wrote:
 Dreadwinter wrote:
 whembly wrote:
 Dreadwinter wrote:
You can, saliva. It works for DUIs, why not work?

I'm pretty sure it isn't very accurate. Lemme doublecheck.


Don't worry, I got you.

http://www.forensicfluids.com/oral_v_urine.htm

Oh... now I remember why it isn't commonly used.

You still can't tell if you're stoned. All these tests can show is that you have THC present in your saliva.

So, instead of trying to find that fine line of whether or not you're impaired, the company policy is for any trace.



Did you read that at all?

When found in saliva, this means impairment because the drug has entered the blood stream and affected the brain, thus affecting motor skills.


So, you can tell if a person is stoned based on this test. Come on.

This message was edited 1 time. Last update was at 2015/06/16 16:48:17


 
   
Made in us
Decrepit Dakkanaut






New Orleans, LA

 Dreadwinter wrote:

This man was prescribed marijuana by a doctor. But no, the job says he cannot have that medicine! How is that right?


For this particular case, I don't think it is right. However, this is just the beginning of these rulings and cases. I expect we'll see a lot of development on this topic in the next 10 years...

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Made in us
Longtime Dakkanaut






 whembly wrote:
 Dreadwinter wrote:
You can, saliva. It works for DUIs, why not work?

I'm pretty sure it isn't very accurate. Lemme doublecheck.


Neither are alcohol tests, but that doesn't stop anybody...


Automatically Appended Next Post:
 whembly wrote:

Oh... now I remember why it isn't commonly used.

You still can't tell if you're stoned. All these tests can show is that you have THC present in your saliva.

So, instead of trying to find that fine line of whether or not you're impaired, the company policy is for any trace.



Long-term "any trace" alcohol tests exist as well. ETG testing can detect alcohol for about a week post-ingestion, and is more or less comparable to the urine test for THC. Saliva testing is a shorter term test for impairment just like breathalyzer testing. If this was really about safety, then employers would simply use saliva tests and be done with it.

This message was edited 1 time. Last update was at 2015/06/16 16:55:11


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Beijing

If you're drunk or high at work then it affects your job and you should be disciplined. This ruling means you can sack people for doing something legal in their free time regardless of whether it impacts their work. Hmmm.

You Americans are obsessed with testing enployees and have somehow come to accept it as a reasonable imposition from employers. It doesn't happen in the UK and we don't have problems with people, spliff in mouth, crashing their trucks at work.
   
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CL VI Store in at the Cyber Center of Excellence

 kronk wrote:
 Dreadwinter wrote:

This man was prescribed marijuana by a doctor. But no, the job says he cannot have that medicine! How is that right?


For this particular case, I don't think it is right. However, this is just the beginning of these rulings and cases. I expect we'll see a lot of development on this topic in the next 10 years...


Again, it is pretty simple. THC is a Schedule I drug. Like it or not. Until that changes any business that may ever want to work across state lines/bid on a Fed contract/what ever will be perfectly correct to screen for it, fire for it and so on. A prescription for a federally illegal drug isn't going to hold water in a court case against the business.




Automatically Appended Next Post:
 Howard A Treesong wrote:
If you're drunk or high at work then it affects your job and you should be disciplined. This ruling means you can sack people for doing something legal in their free time regardless of whether it impacts their work. Hmmm.

You Americans are obsessed with testing enployees and have somehow come to accept it as a reasonable imposition from employers. It doesn't happen in the UK and we don't have problems with people, spliff in mouth, crashing their trucks at work.


It is not something legal federally. And frankly, even if it WAS legal federally, a business can have the policy to fire you for it. A business can fire folks for what they post to social media, even when that does not impact their work. No one is entitled to violate their employer's policies and still keep their job. They are entitled to not work for an employer who has policies they disagree with.

This message was edited 1 time. Last update was at 2015/06/16 17:04:52


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Made in us
Longtime Dakkanaut





This is likely to be struck down in on appeal due to practical reasons:

Given how long pot remains in one's systems, and that detection can result from simply breathing second-hand smoke.

And given that there remains no way to reliably test for pot (given the many "fixes" you can take to thwart urinalysis), it is likely that the court will overturn this.

This is the first of such rulings on a path to clarifying the MANY outright lies, or simple confusions people have regarding drug use, and the people who use "drugs' other than alcohol and caffeine.

MB
   
 
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