Guest column: Precedent set on employee ‘zero tolerance’
Ryan Summerlin March 13, 2014
Question: “Can I lose my job over recreational marijuana use?”
Answer: Yes, you can lose your job because of the use, possession, sale or distribution of marijuana on the job.
While companies can choose to have different policies, many of them choose to have a “zero tolerance” policy. Many companies have zero tolerance for employees who sell or distribute marijuana at the worksite, and many have policies stating that possessing it on the job is also grounds for discharge. Likewise, you might assume that using it on the job, even on breaks, can get you fired. But what about just having it in your system when at work? What if you used it the night before, or the month before, and it’s still in your system when you are drug-tested?
That’s a question that Brandon Coats learned the hard way. Coats was a medical marijuana user, who, according to the facts laid out in a recent decision by the Colorado Court of Appeals, Coats v. Dish Network LLC, had never used marijuana while at work. Still, he came up positive on a drug test and was discharged. The Colorado Court of Appeals held that nothing in Colorado’s medical marijuana statute gave him a right to use marijuana, at least not as to his employer. Rather, Colorado’s medical marijuana laws create a limited exception to criminal enforcement. On Jan. 27, 2014, the Colorado Supreme Court agreed to hear an appeal of Coats’ case. While some lawyers think the Court of Appeals got it wrong, and indeed one judge dissented, the decision is consistent with precedent and finds its roots in the undisputed principle that marijuana was and remains a federal controlled substance, even in states like Colorado that have now passed not only medical but recreational marijuana laws. Colorado’s medical and recreational marijuana laws have language saying they do not apply to employers, and while some attorneys believe that language should be read more narrowly than the Court of Appeals has, however it is read, whatever Colorado law might say, it remains federal law that marijuana is a criminally controlled substance.
So at this point in time, you clearly can lose your job because of marijuana use. This could eventually change, as a decision from the Colorado Supreme Court is expected later this year.
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