Marijuana and Your Company - How Will You Respond to Changing Drug Laws

Last year, marijuana was legalized for recreational and medical purposes in Washington state and Colorado. On July 1 of this year, the Colorado Department of Revenue released a 60-page report that details how recreational marijuana should be regulated, sold, and licensed in the state. Washington is currently working on a similar report and both states plan to start selling the drug on Jan. 1, 2014.

Although medical marijuana has been available in both states for some time, many businesses still test for the drug. Some businesses use the test as a pre-employment screening requirement, and others continue to test employees sporadically. What’s an employer to do if a medical marijuana user—or, come January, a recreational marijuana user—tests positive for the drug? Does the business have the right to fire the employee? So far, the courts have sided with businesses.

Recently, a divided Colorado Court of Appeals panel upheld the firing of Brandon Coats (the decision was 2-1). In 2010, Coats, a medical-marijuana patient, was fired from his telephone operator job at Dish Network because he failed a random drug test. Coats uses a wheelchair after he was injured in a car accident when he was a teen. He has been a Colorado medical marijuana patient since 2009 and uses the drug to control muscle spasms. The court concluded that marijuana is illegal under federal law, and employees have no protection to use it anytime. The Denver Post, among other publications, detailed the case.

This court decision was a first, and according to the article, “Colorado court upholds firing for off-the-job medical marijuana use,” by John Ingold in The Post, the case could have “broad implications” for marijuana users in Colorado.

“The case is the first to look at whether off-duty marijuana use that is legal under state law is protected by Colorado's Lawful Off-Duty Activities Statute. The statute says employers can’t fire employees for doing legal things off the clock,” Ingold said. “[The] ruling by the Colorado Court of Appeals reaches a much broader conclusion: that nothing illegal federally can be considered ‘lawful’ under the Lawful Off-Duty Activities Statute.”

The article reported that Coats was disappointed in the ruling. Michael Evans, Coats’ attorney, said he wants the state Supreme Court to review the decision.

Fred Hosier of Safety News Alert, also commented about the case in the article, “Worker uses medical marijuana: Can he be fired for it?”. Hosier wrote that “if the legislature wanted to insulate employees from being fired for activities that are illegal under federal law, it could have done so, but didn’t. Bills to do just that have been introduced in California. However, two times so far the bills haven’t had sufficient support to become law.”

Hosier wrote, though, that Washington courts have also ruled that employers can fire medical pot users. Again, thus far, employers have the right to fire employees for marijuana use—recreational or medical. “Companies can have zero-tolerance drug-use policies, including those for safety reasons. And employers can enforce these policies by firing employees who violate them. As is the case with all company rules regarding employee conduct, a key is to apply the policies equally to all workers.”

According to Associated Press reporter Steven K. Paulson, the only state, so far, that cannot freely fire an employee for using marijuana (medical in the case of this state) is Arizona. “Workers cannot be terminated for lawfully using medical marijuana, unless it would jeopardize an employer's federal licensing or contracts,” Paulson wrote after the Colorado court case. Voters in Arizona approved a law in 2010 that forbids employers from discriminating against  medical marijuana patients, but does not protect employees who are impaired on the job. A 2011 law gave employers some additional authority to penalize workers thought to be impaired at work.

What this means for delivery companies

Peter Schlactus, managing director at Brightstone Insurance Services, LLC, said that the insurance coverage issues for delivery companies could vary in the wake of the two new marijuana laws. “Would the operation of the vehicle be considered illegal and could that trigger coverage issues under liability?  It's very possible that the answers will vary among insurance companies and even from underwriter to underwriter until experience accumulates and settles things out,” Schlactus said. “Also, would this work make drivers a target, leading to more [workers’ compensation] or accident insurance claims? And overall how will underwriters react if they are made aware of such operations—or if they are not revealed and come to light after a claim? Again, there are no clear or universal answers at this point.”

Richard Holstein, owner of Courierwest in Seattle, Wash., said that his company would continue to drug test. “We currently drug test our drivers and will continue to do so because they are driving company vehicles,” Holstein said. “Marijuana may be legal in the state of Washington, but under the new law, it is not lawful to operate a motor vehicle with a level of five-nanograms per milliliter of THC in the blood, as detected by a blood draw. If a driver has a level of five-nanograms THC or greater, he or she will face the same conviction as a driver under the influence of alcohol or other drugs.”

Holstein said, however, that if an employee has a level that’s lower than the law, he would examine the situation. “As long as they are under the limit and as long as the state and feds have no problem with it, it may not be grounds for dismissal.”

Holstein said the company might change the way it drug tests in the future. “We may move to a blood test rather than the urine test we currently use if it is within our rights as a company to do so.”

He thinks that the legalization may affect the delivery industry when it comes to government regulations. “The impact will be between the state and federal government, how the rules and regulations that overlap are interpreted will be the real fight,” Holstein said. “Bottom line: We have yet to have an employee or a prospective employee fail a drug test. If and when it does happen, we will follow the law, take into consideration the employees tenure and our company’s experience with the employee.”

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