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Colorado Court of Appeals clarifies unemployment eligibility rules related to marijuana use

The Colorado Court of Appeals has clarified how Colorado’s medical and recreational marijuana laws impact eligibility for unemployment. The case involved an unusual fact pattern that provided the court with a springboard to articulate four rules. The worker was on medical leave, but worked for a financial institution to which he personally owed money. Although he was on medical leave, he still had to come in occasionally to make payments on the loan he owed his employer. While there to make a payment, HR advised that he had come up for a random drug test, on which he tested positive for marijuana. Thus the Court was faced with a case where the person was still an employee but obviously not engaged in or even able to be engaged in actively performing job duties at the time he was tested.

The lower court looked at only one subsection of the unemployment-eligibility statute, CRS 8-73-108(5)(e)(IX.5). Subsection IX.5 renders a worker who tests positive for even otherwise lawful marijuana to be ineligible for unemployment if the test was taken “during working hours.” Because the employee was on medical leave, the court held his positive test did not arise from a sample taking “during working hours.” The lower court then held that because subsection IX.5 was so specific to marijuana, it was not able to look at other sections of the statute.

The Colorado Court of Appeals reversed. The Court of Appeals held that other subsections still apply, not just IX.5. Looking at all the other subsections, the Colorado Court of Appeals held there are at least four ways a worker can be disqualified form receiving unemployment in Colorado due to otherwise lawful marijuana use:

  1. A positive test “during working hours”;
  2. A positive test during or outside working hours that had or could have had an adverse impact on the company;
  3. A positive test during or outside working hours that interfered with the employee’s job performance;
  4. A positive test during or outside working hours that rendered the employee unable to meet “established job performance or other defined standard.”

Here is the full quote from the Colorado Court of Appeals:

Any conflict among the provisions at issue in this case is not irreconcilable.  Subsection (IX.5) disqualifies an individual for the sole reason that he or she had a positive drug or alcohol test while working, essentially dispensing with the need for an employer to establish any impairment of the employee’s abilities or adverse effect on the employer’s business.  However, subsection (VII) would apply where an employee violates an employer’s rule prohibiting drug use, whether on or off the job, but an employer would be required to demonstrate that the employee’s drug use had, or could have had, adverse impacts on the company.  Similarly, subsection (VIII) could be applied to off-the-job drug use but requires proof that the drug use interfered with the employee’s job performance.  And subsection (XX), when applied in a drug use or testing scenario, requires the employer to establish that an employee’s drug use or failed drug test caused him or her to fail to meet an established job performance or other defined standard.  Because there is no irreconcilable conflict, all provisions of the statute are amenable to harmonious construction, and thus must be given effect.  

Source: M&A Acquisition Corp. v. ICAO, — P.3d —, case no. 19CA0679 (Colo.App. 11/21/19).

Positive drug tests continue to rise, and not just for marijuana

With a growing number of states embracing marijuana for assorted reasons (pain relief, cash crop, recreational use), it’s no surprise that U.S. workers in every sector keep failing urine tests. Drug monitor Quest Diagnostics found that everyone has been doing more of everything (cocaine, pot, meth) over the past few years. The results of its latest survey shows double-digit leaps in employee drug use across the board, with notable spikes in “consumer-facing industries, including jobs in retail and health care and social assistance.”
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“Colorado denies widow half of late husband’s workers’ compensation due to his marijuana use”

The Denver Post reports, “The state of Colorado is denying half the workers’ compensation death benefits to a woman whose husband died while working on a ski lift because he had marijuana in his system.” Colorado workers compensation law does impose a 50% penalty on workers compensation benefits (not including medical expenses) for workers who violated safety rules, including positive drug tests. The Denver Post article reports that in this, the first case to raise the issue, a worker’s positive test for marijuana, following his having been killed on the job, was deemed grounds to deny his widow 50% of the death benefits to which she and their family would otherwise have been entitled. The case has not been appealed to the courts; it currently remains at the agency level. However the issue is ultimately resolved, the case remains a powerful reminder that marijuana remains, in all states, a criminally prohibited drug. While some states, like Colorado, have exceptions from prosecution for state law enforcement, applicable to medical and even recreational use, those are merely exceptions from criminal law enforcement; the use of marijuana itself remains a criminally prohibited act. 

Source: “Colorado denies widow half of late husband’s workers’ compensation due to his marijuana use,” the Denver Post (7/17/18).

San Francisco enacts Ban-The-Box ordinance for marijuana offenses

San Francisco is the latest to join a trend of authorities enacting ban-the-box legislation with an ordinance that supplements its “fair chance” law by, now, prohibiting employers from inquiring into marijuana use within California‘s marijuana-permissive law.

Source: San Francisco Ordinance No. 17-14.

State marijuana law not preempted by federal law, at least according to one federal trial court

In the first case of its kind, a federal district court held that Connecticut’s marijuana-permissive law is not preempted by federal law. The case arose when an employer refused to hire the plaintiff after she tested positive for marijuana that she’d been taking for PTSD (in its synthetic pill form, Marinol). Unlike most states’ marijuana-permissive laws, Connecticut’s prohibits employers from discriminating against individuals on the basis of their use of medical marijuana.

When the plaintiff sued, the employer argued that the anti-discrimination provisions in Connecticut’s marijuana-permissive law were preempted by federal law. Marijuana remains a controlled substance under federal law, specifically the Controlled Substances Act (“CSA”).

The federal court disagreed, strongly (parenthetical in original):

Defendant argues that because the CSA prohibits marijuana use, defendant would be violating federal law (and thus violating the federal nursing home regulations that require compliance with federal law) by hiring plaintiff. This argument borders on the absurd. Because the act of merely hiring a medical marijuana user does not itself constitute a violation of the CSA or any other federal, state, or local law, defendant is not exempt from § 21a-408p(b).

Will other courts follow the court’s decision? It seems inconsistent with at least one precedent, Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010), although the court distinguished that case, saying that, while Emerald Steel was “quite similar,” it raised a “very different question.”

Employers should learn whether the states, municipalities or other local authorities in which they employ workers have passed marijuana-permissive laws, like Connecticut’s, that either prohibit discrimination against or require reasonable accommodation of medical (or recreational) marijuana users. Employers in such states should be mindful whether Noffsinger suggests a need to comply with such state laws even though they believe such compliance is in tension with federal law. Currently at least eight states have such laws: Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York and Minnesota.

In states like Colorado, where neither medical nor recreational marijuana laws prohibit such discrimination nor require such reasonable accommodation, Noffsinger would seem to have no impact. In Colorado in particular, the Colorado Supreme Court has already held employers may terminate marijuana users. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).

Source: Noffsinger v. SSC NIANTIC OPERATING COMPANY LLC, Dist. Court, D. Connecticut 2017 – Google Scholar