Employers In Medical Marijuana States Can Still Drug Test Employees, Federal Judge Rules

Employers In Medical Marijuana States Can Still Drug Test Employees, Federal Judge Rules

In yet another case with implications for workers who are legally using medical marijuana under state laws, a federal judge has given a New Jersey business permission to continue drug testing employees for cannabis—and to punish them if they test positive, regardless of whether they have doctors’ recommendations.

Of the 31 states that have legalized medical marijuana, only nine have some form of explicit employment protection for qualified medical cannabis patients.

New Jersey is not one of those states. And no state protects an employee from termination if the employer stands to “lose a benefit under federal law,” such as a license or funding, according to legal analysts.

Daniel Cotto Jr. had worked as a forklift driver at Ardagh Glass since 2011. According to his suit, at the time of his hiring, the company was aware he was using medical marijuana to treat pain stemming from a 2007 injury.

The company terminated him in 2017 after he declined to submit to breathalyzer and urine screenings following a 2016 accident, according to NJ.com.

As per the suit, a company human resources manager told him his medical marijuana use was a “problem.”

Cotto sued, citing state law barring discrimination.

This week, Judge Robert Kugler of U.S. District Court in Camden, New Jersey dismissed the case, ruling that the state’s medical marijuana law “does not mandate employer acceptance—or, more particularly, to waive a drug test—of an employee’s use of a substance that is illegal under federal law.”

Without such protections, according to precedent in New Jersey courts, employers “may continue to [ban] its use through lawful workplace drug testing policies,” Kugler wrote.

In Cotto’s case, his job as a forklift driver may have scotched his case from the beginning. A 1992 state Supreme Court decision ruled that forklift operators specifically are in a “safety-sensitive” position, and thus can be drug tested.

(A recent study showed that workplace deaths are significantly lower in states with legal medical marijuana.)

“Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics,” wrote Kugler, who added that New Jersey is also an “at-will” employment state—which means that employers are permitted to terminate employees “for good reason, bad reason, or no reason at all.”

The only exceptions, under discrimination laws, are if an employee is fired for being a member of a protected class, such as a sufferer of a disability.

Though medical marijuana users like Cotto may argue that injuries that require prescription medication—or cannabis—places them in such a class, Cotto did not argue that in his suit, according to Kugler.

As per NJ.com:

“Kugler said in his ruling that Cotto was not claiming that Ardagh was discriminating against him based on his disability, but ‘discriminated against him by refusing to accommodate his use of medical marijuana by waiving a drug test.’”

The case reflects the necessity for states to include employment protections in their medical marijuana laws.

It also presages another impending issue—employment protections for users of recreational marijuana. Currently, no states offer such protections, meaning legal users of cannabis still face risks that users of alcohol or other drugs do not.

To that end, Rep. Charlie Crist (D-FL) last month filed legislation that would shield most federal employees from being fired for off-the-job marijuana use that is legal in their state.

https://massroots.wpengine.com/news/congressman-pushes-federal-employment-protections-marijuana-consumers/

See the original article published on Marijuana Moment below:

Employers In Medical Marijuana States Can Still Drug Test Employees, Federal Judge Rules

Legal Marijuana States Suffer Lagging Laws

Legal Marijuana States Suffer Lagging Laws

As both medical and recreational legalization sweeps the nation, with red states like Alaska and Ohio getting into the game, patients and advocates are cheering their entry into the 21st century. Unfortunately, a slew of ancillary laws that dramatically affect cannabis consumers and businesses have yet to catch up.

In July, an Arizona Court of Appeals ruled that the smell of marijuana alone cannot serve as probable cause for police to search one’s home or vehicle. In 2010, the state legalized a medical program in the form of the Arizona Medical Marijuana Act.

senate-committee-says-yes-to-marijuana Banking

The court based its decision on the fact that searches of legitimate medical marijuana patients based on smell alone would deem them “second-class citizens,” “losing their rights to privacy and security, including privacy within their own homes.” The judge decided that a warrant cannot be justified by behavior that might be legal.

In late August, an Oregon Court of Appeals refused to declare the smell of burning cannabis “unpleasant.” The court ruled that cannabis smoke isn’t necessary offensive to all people (like, say, rotten food or feces).

Also in late August, the city of Washington, D.C., where recreational possession and consumption is legal, made it illegal for employers to test job candidates or employees for marijuana. It would certainly be illogical for a legal activity like smoking or vaping cannabis to result in a punitive action like loss of a job opportunity or dismissal from a current position.

As a greater number of states embrace legalized cannabis, related laws regarding everything from drug testing and impaired driving to banking services and insurance are in desperate need of revision. Make no doubt, prohibitionist forces are doing everything within their power to slow the acceptance and destigmatization of cannabis in the United States.

Drug Testing and Banking Services

Drug testing and banking services are probably the two greatest issues facing patients, consumers, and business owners in states where the herb is legal. Despite progress, such as the court decisions above, patients and entrepreneurs still face many hurdles in pursuit of a society that truly allows — and even encourages — the capitalization of medical and recreational marijuana.

after-legalization-other-laws-lagging

In June, the Colorado Supreme Court ruled, in a 6-0 decision, that it is legal in the state for a company to fire any employee that tests positive for marijuana. The irony of the situation is obviously that Colorado has had legal medical cannabis since 2000 and has allowed recreational cultivation, possession, and consumption since January of 2014.

The Court justified its decision with the definition of the term “lawful” under Colorado’s Lawful Off-Duty Activities Statute. According to the justices, the existing state law refers to activities lawful under both state and federal law. In his opinion, Justice Allison H. Eid wrote:

“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.”

Most merchant banking companies have refused to provide their services to cultivation facilities, dispensaries, and retail stores because they are afraid that the federal government will nullify their FDIC insurance. A prominent feature of most dispensaries is an ATM; unfortunately, it’s an all cash business. Because banking regulations haven’t caught up with the progressive cannabis laws of states like Colorado and Oregon, patients, customers, and business owners suffer under the security burden of piles of cash.

Of course, this hoard of cash is ironic, given that dispensaries and pot shops are intended to rid communities of the influence of cartels and the black market. Bundles of Benjamins obviously serve only to attract crime.

june 2015 marijuana sales colorado

The Pressure is On

Short of establishing their own banking services, cannabis-related companies in states like Colorado and California are hard pressed to operate like a normal business. Even the IRS is behind the times, with laws that prohibit certain major tax writeoffs for businesses that trade in a federally illegal substance. Because of this, some dispensaries are effectively paying 60-70 percent tax rates. This lack of financial incentive, if it pervades, may drive entrepreneurs and vendors out of the cannabis business, serving the ends of prohibitionists like New Jersey governor Chris Christie.

Drug testing and banking services are, without a doubt, the most pressing issues facing the burgeoning cannabis industry at this time. Reasonable citizens who would otherwise consume marijuana in a legal environment may avoid the activity due to the risk of losing their jobs — unfairly hurting small businesses who might depend on their patronage. Small businesses and investors may pass on opening a cannabis-related business simply due to arcane tax regulations and an inability to utilize merchant banking systems.

One unlikely solution to all of these headaches is federal legalization, or at least a reclassification of cannabis out of Schedule I. Banking regulations, tax rules, and employer drug testing must be reconsidered, with a recognition that tens of millions of Americans can legally — at a state level — grow, possess, and consume cannabis. Until this happens, the greenrush of the twenty-teens will be at least partially paralyzed.

Colorado Court Rules Medical Marijuana Patients Can Be Fired for Pot

Colorado Court Rules Medical Marijuana Patients Can Be Fired for Pot

On Monday, June 15, the Colorado Supreme Court ruled, in a 6-0 decision, that it is legal in the state for a company to fire any employee that tests positive for marijuana. The irony of the situation is obviously that Colorado has had legal medical cannabis since 2000 and has allowed recreational cultivation, possession, and consumption since January of 2014.

The Court justified its decision with the definition of the term “lawful” under Colorado’s Lawful Off-Duty Activities Statute. According to the justices, the existing state law refers to activities lawful under both state and federal law.

In his opinion, Justice Allison H. Eid wrote:

“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.”

In the big picture, this is simply another case of outdated federal law trumping the more progressive policies of states like Colorado, California, and Oregon. In its decision — because there was no existing statute regarding the subject — the Colorado Supreme Court relied upon federal law. Cannabis is considered a dangerous drug with absolutely no medical value under the Controlled Substances Act, a legacy of the Nixon administration in the early 1970s.

Quadriplegic Patient Brandon Coats

Colorado-says-patients-can-be-fired-for-pot2

In Colorado, Brandon Coats, an employee of Dish Network who is also a wheelchair-bound quadriplegic, was fully compliant with state law when he used marijuana to treat muscle spasms during his off hours at home. However, the state also enables companies to make — and enforce — their own drug policies. Unfortunately, Dish Network has a zero tolerance policy for drug use that resulted in Coats being fired in 2010.

The Coats case slowly navigated the court system, each time losing. It finally resulted in the Colorado Supreme Court’s recent decision. The Court’s reliance on federal law to interpret a case in a legal marijuana state is striking because of its sheer lack of logic and compassion. In a somewhat libertarian state that embraces medical cannabis, gay marriage, and the plight of the small businessperson, a company’s ability to fire employees for doing what is legal under state law is more than slightly ironic.

The case of Coats exemplifies how progressive states like Colorado and Oregon truly are ahead of antiquated federal laws and policies. This case goes beyond the issue of medical marijuana to expose the struggle of states to exercise autonomy and reflect the will of their citizens. The topic of state’s rights and the ability of a state or commonwealth to go counter to federal policy is the underlying legal framework of this issue. Until the federal government either reclassifies cannabis to Schedule II or passes at least limited legislation recognizing national medical or recreational use, cases like that of Coats will become increasingly common as more states adopt legalization that goes counter to federal prohibition.

Don’t Blame the Feds

Colorado-says-patients-can-be-fired-for-pot

The feds can’t be blamed for everything, though. In all fairness, it is Colorado that allows employers to establish their own drug policies. Instead of whining about federal policy and the fact that Coats was unfairly fired — and his state’s Supreme Court just told his employer that they were in the right — citizens of Colorado should petition their representatives to make employee drug testing for cannabis illegal. Simply prohibiting companies from testing for a legal substance under state law prevents future toking employees from being detected in the first place, let alone dismissed.

The Coats case also illustrates the fact that some employers are pushing drug testing even harder. In light of medical and recreational laws across the nation, companies and executives that are opposed to legalization are using more robust testing to “weed out” employees who have lifestyles that, while they may be legal, don’t comply with the company’s moral highground. Those living in states with any level of legal cannabis who consume, but also value their job, must make some tough decisions regarding their lifestyle.

Until Colorado steps up to the plate and prohibits companies from testing employees for cannabis, a substance that is fully legal to grow and consume in the state for any citizen 21 or older (the vast majority of the workforce), breadwinners will live in a world of fear and confusion. Otherwise happy Colorado cannabis consumers will be asking themselves: “I’m allowed to do this, but my boss can fire me for it just because the company doesn’t like it? But it’s legal!”

Photo credit: The Denver Post

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!

[data-image-id='gourmet_bg']
[data-image-id='gourmet_bg']
[data-image-id='gourmet_bg']
[data-image-id='gourmet_bg']
[data-image-id='gourmet_bg']
[data-image-id='gourmet_bg']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']
[data-image-id='gourmet']