Colorado High Court Okays Zero Tolerance for Pot Use

First published in Law360 on June 18, 2015 – In a nationally anticipated ruling on June 15, 2015, the Colorado Supreme Court ended uncertainty for employers by deciding that termination of employment for off-duty marijuana use does not violate Colorado’s Lawful Activities Act. Coats v. Dish Network

Coats was a paraplegic who used medical marijuana to alleviate pain associated with his condition in accordance with Colorado’s medical marijuana law. After a random drug test revealed he was positive for THC, the chemical found in marijuana, Dish Network terminated his employment. Coats then appealed his discharge under the Colorado Lawful Activities Act, § 24-34-402.5, C.R.S.

The Lawful Activities Act generally prohibits employers from discharging an employee based on “lawful” off-duty conduct. In Coats, the Court ruled that “lawful” under the Act means lawful under both federal and state law. Therefore, because federal law (the Controlled Substances Act [CSA]) prohibits medical marijuana use, it is not “lawful” off-duty conduct under the Colorado Act.

The Coats opinion will also apply to off-duty recreational marijuana use, possession, and manufacturing as permitted under Colorado law, because the Court held that under the Supremacy Clause of the U.S. Constitution, no state law definition of lawful conduct can trump federal law defining criminal conduct.

Significantly, there was no evidence in the Coats case that the employee showed any adverse performance effects of being “under the influence” of his medical marijuana at work. To the contrary, but for the random drug test, he would not have been fired.

Is Our Policy Defensible?

According to Governing Magazine, twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. Four have legalized marijuana for recreational use, with Alaska and Oregon joining Colorado and Washington this year. And, approximately one half of American employers currently perform drug testing.1

As additional states and municipalities legalize marijuana use, employees will increasingly launch legal challenges to random drug testing in the workplace. Therefore, the first question for employers who do test will be whether their policy is legally defensible. The answer lies in a mosaic of federal and state law.

Government Employers

In a pair of 1989 decisions, U.S. Supreme Court held that governmental use of mandatory drug testing via urine sample invades employees’ reasonable expectations of privacy, implicating the Fourth Amendment’s prohibition on unreasonable searches. Skinner v. Railway Labor Executives’ Assn., 109 S. Ct. 1402 (1989) National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989). Nonetheless, in both cases the Supreme Court upheld drug testing as a reasonable search based on the government’s showing of “special needs.” The dissents are notable for their impassioned defense of privacy rights.

Federal courts have largely upheld governmental random drug testing for positions involving public safety, carrying of firearms, and access to highly classified information. Taylor v. O’Gracy, 888 F.2d 1190 (7th Cir. 1989). But see Transportation Institute v. U.S. Coast Guard, 727 F.Supp. 648 (D.D.C. 1989)(striking testing program as too broad).
Federal laws require drug and alcohol testing in the transportation, defense, and health care industries. And, federal contractors over $100,000 must comply with the Drug-Free Workplace Act, which requires an ongoing, good-faith effort to maintain a drug-free workplace. Some states have passed laws governing drug testing of public employees, but they vary widely.

Private Employers

Americans with Disabilities Act

No federal law governs drug testing by private employers. However, the Americans with Disabilities Act explicitly permits “the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results.” 42 U.S.C. § 12114(d). In addition, a “qualified person with a disability” shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the employer acts on the basis of such use. 42 U.S.C. § 12102(2).

Further, under the ADA, employers “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that [it] holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” 42 U.S.C. § 12114(c). Importantly, however, prior to any performance issues arising, if an employee requests a reasonable accommodation for a mental health impairment consisting of drug or alcohol addiction, the employer has a duty to provide time off for treatment.

Gonzales v. Raich

In 2005, the U.S. Supreme Court considered a constitutional challenge to the CSA by California medical marijuana users whose plants were seized by federal agents. Gonzales v. Raich, 545 U.S. 1(2005). The lawsuit was an “as applied” challenge to the CSA under the Commerce Clause, asserting “the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of [medical] marijuana” under California law exceeded Congress’ authority under the Commerce Clause. The Supreme Court rejected the challenge. The Colorado Supreme Court cited Gonzales’ reliance on the Supremacy Clause in its Coats decision this week.

State Laws Governing Private Sector Drug Testing

According to the Society for Human Resource Management, many states have enacted laws either restricting or promoting drug testing in the private sector.2

On the promotion side, Alaska, Arizona, Idaho, and Utah provide private employers with immunity against lawsuits related to drug testing. Alabama, Florida, Georgia, Mississippi, Ohio, South Carolina, Tennessee and Virginia provide employers that test with worker’s compensation premium discounts.

On the restriction side, Maine, Vermont, Rhode Island, Connecticut, Montana, Minnesota, Iowa, and Hawaii have placed limits on the circumstances under which employees can be required to submit to drug tests. Idaho requires that a positive test be confirmed with a second test. California requires a balancing test, weighing an individual’s right to privacy against an employer’s need to conduct the drug test; and, employers may test current employees upon reasonable suspicion of drug use.

What Should Our Policy Be?

With the increase in marijuana use in this country, questions remain about the efficacy of randomized testing and a zero tolerance policy. What will employers with such a policy do when one of their top performers tests positive for THC? Will they apply the policy consistently, or risk a lawsuit for disparate treatment if they don’t? Is it preferable to establish a process for addressing the individual circumstances of positive test results and making discretionary decisions? Or, would such a discretionary process also open the door for disparate treatment claims? In the alternative, is it preferable to train and empower managers to activate an immediate drug test when they have a good faith belief an employee is under the influence at work?

As Deschenaux and others point out, just because employers often can impose drug testing on all of their employees doesn’t mean that they should. On the pro side, drug testing may have a deterrent effect on drug abuse, may reduce accidents and enhance safety, and may improve productivity and attendance. On the con side, such testing may result in unnecessary terminations of strong performers, can be expensive to administer, may adversely affect employee morale and trust, may result in false positives, may not determine actual impairment, and is likely to raise privacy concerns.

Clearly, no drug testing policy will suit all employers. The good news is that with the Coats decision, Colorado employers now have all the choices they need.

  2. Joanne Deschenaux, Consider Pros and Cons of Drug and Alcohol Testing, March 25, 2015