In the department of counterintuitive court rulings, Colorado’s Supreme Court ruled in favor of Dish Network, when the company fired an employee for smoking marijuana.
The fact that the weed in question was medical grade, prescribed by a doctor for seizures suffered as a result of a car accident that left him paralyzed and wheelchair bound, not consumed on the job–and that it is legal to use marijuana even recreationally in Colorado–didn’t sway the court. The decision is a win for companies in the state with a zero-tolerance policy.
But it certainly makes it more challenging for employees who might think they have certain rights if they are engaging in lawful (if still not completely socially acceptable) behavior when they are off the clock. The Colorado Supreme Court’s ruling was based on the fact that, while state law permits marijuana use, federal law doesn’t, and that took precedence. It’s a big win for companies beyond Dish Network, especially if they rely on federal contracts that demand that they stay compliant with federal drug-free workplace laws.
That may change as support for the legalization of weed is gaining popularity, according to recent research from Pew. Millennials lead the pack with 68% in favor of legalization, and seven in 10 Americans believe that alcohol is more harmful to a person’s health than marijuana. But even drinking off the clock is held to a different standard.
Brandon Coats, the fired employee in question, told the New York Times: “A person can drink all night long, be totally hung over the next day and go to work and there’s no problem with it.” Some employers state up front they won’t stand for drug use of any kind. The Times report noted one job ad in Denver stated: “Please do not apply if you are NOT drug free or carry a medical marijuana card.”
In Arizona, where the majority of employment relationships aren’t under contract, meaning you could be let go at any time and for any reason that is not illegal, off-hours drinking and carousing could get you fired. Especially if you post your exploits publicly on social media.
Further muddying the waters is Title I of the Americans With Disabilities Act, which states it “specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol, and to comply with other federal laws and regulations regarding drug and alcohol use. At the same time, the ADA provides limited protection from discrimination for recovering drug abusers and for alcoholics.” In other words, even if you were an addict and got clean, you may not be treated as such by an employer.
While cultures of acceptance and denial continue to clash, companies are still using drug tests as a way to weed out (no pun intended) “undesirable” candidates to the tune of 9.1 million tests last year. One estimate is that nearly half (40%) of employers use drug tests during the hiring process, and among those tested, 350,000 returned positive results for marijuana, amphetamines, and painkillers.
Five years ago, assembly-line worker Sue Bates was fired for taking the painkiller hydrocodone, which her doctor prescribed for back pain. She sued her former employer, Dura, a manufacturer of car parts. For its part, Dura maintained they were just trying to keep the workplace safe and couldn’t be sure workers weren’t impaired if they took certain prescription drugs.
Some doctors report treating workers who have lost fingers because one of their colleagues was too out of it on drugs, while others, like Dr. Barry Sample, director of science and technology for the Employer Solutions business of Quest Diagnostics, recommend that employers create a policy that clearly indicates which drugs their workers might be tested for and under what circumstances. Supervisors, he told the New York Times, “should be carefully trained to look for signs of impairment–the ‘reasonable suspicion’ necessary under law to warrant testing.”
Given that a recent Mayo Clinic study found that nearly 70% of Americans were prescribed antidepressants or opioid painkillers–the latter blamed for the and fatal overdoses–something has to give.
A drug test doesn’t measure a person’s ability to be productive, nor has it been proven to be a definitive scare tactic to discourage future drug use. But the power of a discount from an insurance company or the promise of a squeaky-clean reputation continue to hold sway.