Colorado resident and medical marijuana patient Brandon Coats, a former telephone operator, was fired by Dish Network in 2010 after testing positive for marijuana use. He has taken his former employer to court throughout the past few years, fighting for his right to compassionate care and right to engage in legal activities while not at work.
Colorado legalized medicinal use of marijuana in 2000, so Coats’ actions did not violate state law. Under the state’s medical marijuana program, Coats, a quadriplegic, consumed marijuana to help with some health conditions related to his paralysis, such as uncontrollable spasms.
When his employer, Dish Network, required him to take a random drug test in May 2010, Coats knew that because he was a medical marijuana patient he would test positive for THC, marijuana’s psychoactive ingredient. He informed the drug administrator of his participation in the program. It turned out that Coats’ status as a medical marijuana patient didn’t matter, as he was fired for testing positive for THC and violating the company’s drug policy.
About 55 million drug tests are performed each year in the United States. The most common type of drug testing is urinalysis, commonly known as a pee or urine test. Unfortunately for medical marijuana patients, THC and other marijuana-related metabolites stay in the body for at least 30 days from their last time of use, though the physical effects or the high last no more than three hours.
Due to marijuana’s long-lasting presence in the body, incidences of medical marijuana patients failing random workplace drug tests and being told their enrollment in a legal medical marijuana program was not a valid defense, have occurred in nearly every state where medical marijuana has been legalized. Since Colorado also legalized recreational marijuana use in 2012, legalization advocates such as the Colorado chapter of the National Organization for the Reform of Marijuana Laws are pushing for workplace drug testing reform.
Rachel K. Gillette, Esq., executive director of Colorado NORML, explained to MintPress News that the problem in Colorado right now is that Amendment 64 contains a clause that says the state’s new legalization laws will not interfere with the employer-employee relationship. In other words, employers can prohibit employees from using marijuana in the workplace, but not in their off-duty, personal time.
As Gillette explained, the legal battle unfolding in Colorado is related to the fact that it’s not clear whether employers can limit an employee’s use of marijuana outside of the workplace, since the substance is still illegal under federal law.
Last year a Colorado appeals court ruled that because marijuana is illegal under federal law and is classified as a Schedule I substance, meaning it has no medicinal value, Coats’ termination was legal. Though Gillette said federal law doesn’t trump state law when it comes to workplace drug testing, she said that one issue Colorado is dealing with right now is determining what is considered a “lawful” activity.
Earlier this year the state’s Supreme Court agreed to hear Coats’ case. Depending on how the court rules sometime this summer, the legally-mandated tolerance for an employee’s off-duty use of marijuana could lead to an easing of employment law as it relates to marijuana in other states. It could also affect other rights marijuana users have lost over the years such as housing, student financial aid and a fair chance in child custody cases.
The marijuana exception
Though private employers are not required to drug test employees, many federal agencies require drug screening for employees who operate heavy equipment, such as the Federal Aviation Administration, Federal Railroad Administration, Federal Pipeline Safety Act, Federal Motor Carriers Safety Act and the Coast Guard.
If a pilot or an engineer tests positive for amphetamine or opiate use, they can still pass the test if they prove they have a prescription. It doesn’t work that way for medical marijuana users, though.
As a result, random drug testing has become a big issue for medical marijuana patients, who, as Gillette pointed out, often use marijuana in order to stop using “dangerous prescriptions” such as oxycodone, Vicodin and Percocet that are highly addictive and can cause organ dysfunction.
“It all stems from the fear and this old school mentality that marijuana is this horrible destructive drug,” Gillette said. “We now know better. Marijuana is much safer than alcohol or tobacco and isn’t highly abused like prescription drugs.”
Even if alcohol or crack cocaine had a longer metabolic life, Gillette said a urine test isn’t going to decide whether or not a person was impaired. She said that instead of testing urine, blood, saliva or hair, employers should test an employee’s impairment by having them undergo balance tests and checking their reflexes.
“Those types of tests are going to be much more productive as far as showing whether your employee is actually behaving safely on the job,” she said. “There is no logic to drug testing. All it is, is a privacy violation” that is being pushed by the drug testing industry itself.
“What we need is some brave employers to stand up and say, ‘I don’t care what my employee does lawfully outside of the job, so long as they show up to work and are not impaired.’”
MintPress asked the federal Substance Abuse and Mental Health Services Administration to comment on the issue of workplace drug testing, specifically as it relates to marijuana. We also asked if the agency was reviewing its zero-tolerance policy now that 20 states and Washington, D.C., have legalized medical marijuana use and two states have legalized recreational use. We were told by a press officer that the agency would look into the issue, but our requests for an official statement have not yet been returned.
Legality of drug tests
In a post on the legal website Nolo.com, Lisa Guerin, an editor and author specializing in employment law, said that when it comes to drug testing, some privately-owned companies that are not mandated to conduct the tests do so anyway to rid themselves of legal responsibility in the off-chance that an employee who uses drugs engages in some sort of reckless or harmful behavior. Employers are also often told they will be offered a discount on workers compensation insurance premiums if they maintain a drug-free workplace.
Given that drug testing usually requires bodily fluids, there are limits on when and how drug testing can be conducted. In terms of protections, current employees are better covered than applicants.
It should be noted that no one can be forced to take a drug test. Opting not to take a drug test, however, could cost someone their job.
The only current legal limits on drug testing prohibit employers from singling out certain people based on race, disability, gender, etc., forcing someone to disrobe or take a urine test in someone else’s presence, discriminating against employees who are legitimately prescribed a certain drug for medical conditions, and violating state or city laws when it comes to informing applicants and employees about drug-testing policies.
For example, a human rights ordinance in Boulder, Colorado, prohibits random drug screenings in the city. A company can legally drug test an employee only after they have documented facts and evidence that the employee has been impaired at work. Gillette, of Colorado’s NORML, said that despite the ordinance, the city has been called one of the most intelligent cities in the U.S. and hosts several large private companies, including IBM and Ball Aerospace and Engineering.
About 13 states currently ban or significantly restrict random drug testing, as well as two cities — San Francisco and Boulder. If medical marijuana is not legalized on the federal level soon, it’s likely those numbers could increase, as states work to enact legislation to protect medical marijuana patients.
For many marijuana advocates like Gillette, there is a lack of focus on the real issue. She said drug tests are not only an invasion of employees’ privacy and costly to employers, but they also ignore the entire point of drug testing, which is to determine whether an employee is impaired at work.
“From our standpoint, the problem here is random [drug] screenings that have nothing to do with impairment,” said Gillette.
“To me, that’s just stupidity to do some urine tests or hair tests that don’t show impairment,” she said, explaining that these tests allow employers some insight into an employee’s private life instead. “Why are we willing to accept that?”
To fight back against these arguably unnecessary tests, Gillette, along with other members of Colorado NORML and other marijuana legalization advocacy organizations, are currently brainstorming “real world solutions” to the marijuana drug testing issue. In a state where an estimated 15 percent of the adult working population uses marijuana, she said, drug tests could exclude hundreds of thousands of people from the workforce.
One proposed solution is a guidance the group would distribute to employers, suggesting they revamp outdated workplace drug policies, since Gillette said many people don’t think employees should be fired for using a substance voters opted to legalize.
Someone shouldn’t lose their job just because they legally smoked a joint at a concert two weeks ago, she said.
Whether the state’s Supreme Court will agree remains to be seen. Until then, marijuana users throughout the U.S. are pawns in what feels like the never-ending war on drugs, even if they’re following state laws.