[JayMillz]

http://www.huffingtonpost.com/2014/09/30...01824.html

Drug & Alcohol Testing

Employer Asks Colorado Supreme Court
To Find At-Home Use of Marijuana Unlawful
Marijuana

By Tripp Baltz

Sept. 30 — The use of marijuana by an off-duty employee is unlawful under federal law—even if legal under Colorado law—and is therefore grounds for terminating the employee under DISH Network's drug testing policy, a company attorney told the state's highest court Sept. 30 (Coats v. Dish Network, LLC, Colo., No. 13SC390, oral argument 9/30/14).

“Medical marijuana is not legal in Colorado under federal law, and therefore its use is not a lawful activity,” said Meghan Welch Martinez an attorney for DISH.

Colorado Supreme Court justices asked Martinez to describe DISH's drug testing policy and to define “use” according to that policy and the law.

“The employee smoked [marijuana] at home, then crossed the threshold of the workplace while still under its effects,” she said. “Just as if you take an aspirin, the actual taking is not the use. When he came to work, he was ‘using’ it, under the definition.”

Drug Used to Control Pain and Spasms

The arguments came in the case of Brandon Coats, a quadriplegic man who uses medical marijuana to alleviate his pain and reduce spasms caused by his physical disabilities. Englewood, Colo.-based DISH fired Coats from his job as a telephone customer service worker after he failed a saliva-swab test that revealed the presence of THC, which can remain in the body for up to 40 days after use.

Coats said he is authorized to use medical marijuana under Colorado's voter-approved constitutional amendment legalizing its use and sale. Voters approved medical marijuana in Colorado in 2000 and recreational marijuana in 2012. Marijuana remains a Class 1 controlled substance under federal law.

Coats filed a lawsuit in August 2011 in Denver District Court. His firing was upheld at the district level and later by the Colorado Court of Appeals (303 P.3d 147, 27 AD Cases 1475 (Colo. Ct. App. 2013); 81 DLR A-4, 4/26/13).

Worker Cites ‘Lawful Activities' Law

Coats's attorney, Michael Evans, told the court that the state's “lawful activities” statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance.

Coats did not smoke marijuana while on the job, and he received positive job evaluations, he said. “DISH knew he was a medical marijuana patient. The mere presence of THC is not evidence of impairment,” Evans said.

Martinez said impairment is not an issue in the case. “The company had a zero tolerance drug policy,” she said. “An employee shall not be at or report to work with an illegal substance in their system. It doesn't matter whether he was impaired or not.”

Evans urged the court to rule that Colorado's Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to people lawfully registered with the state.

Federalism Issues Debated

That argument prompted Justice Nathan B. Coats, who is not related to the plaintiff, to raise the issue of federalism inherent to the case.

“It seems central to your argument that this is lawful in Colorado despite it's being illegal federally,” the justice said. “You would agree in our federal system that federal law is the law in Colorado?”

Martinez said the state's amendment did not grant a constitutional right of medical marijuana use but, rather, an affirmative defense from criminal prosecution.

The state, which filed an amicus brief in the case, agrees with the company that Coats's marijuana use is not legal under federal law, said Michael Francisco, Colorado's assistant solicitor general.

For an employee to receive protection under the lawful activities law, the activity in question must be lawful under both state and federal law, Francisco told the justices. He said if the court sides with the employee, it could lead to “absurdities” in the application of employment law in the state.

“It could lead to companies facing legal action for terminating employees who have violated federal laws, such as immigration, copyright, or federal tax fraud laws,” he said. “That result would be absurd.”

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bna.com

[The Beast1]

Just because the metabolite is in ones blood system doesn't make him "stoned".

Same goes for alcohol.

Idiots need to make this legal and tell drug tester to go f*ck themselves.

[Basil Ransom]

Say marijuana is legal everywhere. Why can't a company choose to not hire people who smoke marijuana? I don't see why it has to stand on federal policies.

[Texas_Tryhard]

So you approve of a company being able your restrict your nonwork lifestyle? What if they banned drinkers? Skydivers? Gun owners?

This case is even more egregious. This man was receiving medical therapy and was terminated for it. Do you approve of your employer having a veto option on what medical decisions you make?

[Basil Ransom]

"So you approve of a company being able your restrict your nonwork lifestyle? What if they banned drinkers? Skydivers? Gun owners?

This case is even more egregious. This man was receiving medical therapy and was terminated for it. Do you approve of your employer having a veto option on what medical decisions you make?"

It's not a company restricting your lifestyle so much as a company seeking employees who are on the same page. The decision comes at the point of hiring and selecting an employer and employee, not after you've already begun working. I tend to side with freedom of contract - that a company can choose not to hire drinkers or any other type of person as it likes. I could see such discrimination getting abusive or problematic, so I don't hang my hat on it as libertarians do. Firms tend to have more power than the masses of wage slaves do, thus labor laws were passed to protect them because mere bargaining power was not sufficient to protect them.

The medical issue is a little hairier. Above all, I think the company was being extremely foolish by firing a man using weed as a legitimate medication for a real disease. I don't see how that makes sense unless the company wanted to fire him for other reasons - though companies do irrational things all the time.

[The Beast1]

It's a sloppy business attitude. Focus on the performance of the employee. Is it lacking or subpar? Fire him, problem solved.

What an employee does on his time outside of work and off the clock is his business.

If my company wants to control me when i'm away from work they can payme my salary outside of work.

If Colorado had balls, they would threaten to revoke Dish Network's operating license in the state.

[R Smoov]

Just free that fucking dank kush damnit.

And fuck Dish network.

[Laner]

What people do on their own time, after work, is of no concern of mine unless the repercussions of their lifestyle become part of their work life.

What I cant fathom is that people think its ok to smoke weed while at work. I live in Vancouver, perhaps one of the most liberal smoking cities in the world, and I have yet to come across someone who is able to be more productive while stoned.

I hear all sorts of whining from guys who think that they are more productive or some shit while high. Not likely.

People who smoke weed everyday after work are essentially taking themselves out of the running for any sort of NEW productive work. Its great for a brain switch and I use it on occasion for this reason, but for chronics they have not much of a chance vs a sober person in regards to complex thinking.

I think this one reason that potheads get painted by this broad brush. Instead of having the pro activity they chill and take themselves out of the rush. To each their own, but I cant stand to see guys around me want more out of this world and then go hit a blunt and chill.

My favorite line though when some dude tries to justify "no one can tell I'm high!". Its 2014 bro, everyone can tell your high.

[Basil Ransom]

"It's a sloppy business attitude. Focus on the performance of the employee. Is it lacking or subpar? Fire him, problem solved."

In a perfect world, yes. But you don't exactly know who's going to be productive and who isn't at the point of hiring.

Why is there more drug testing for minimum wage jobs than for office jobs paying several times as much? If anything, higher paying jobs with more responsibilities should be stricter. My guess - that the average weed smoker applying for the office job who is otherwise qualified, is not much less productive or risky as an employee as one who abstains. But for a minimum wage job where the qualifications required are minimal, a drug test can serve as an effective way to keep out thiefs and sucky workers.

If minimum wage employers had perfect information about a prospective employee's productivity, then no, a drug test would not be helpful. But they don't, and there are plenty of minimum wage unqualified workers to choose from. So they do it.

I don't think occasional weed smoking in and of itself hurts an employee's performance. But it's not hard to imagine, that at least among certain strata like the non-college educated, it's associated with being a shittier worker. There's plenty of other sociological data that suggests that the bad shit upper middle class people do, they can shrug off without it hurting their life, while it wrecks those of the lower classes - eg fornication and bastardy.

[scotian]

I have to do pre-employment drug tests at my work, which I don't totally agree with but it makes sense, I work in mines and oil refineries where major accidents happen and people get killed. I can't really understand why office workers, especially in a customer service role at a call centre would have to do drug testing, I don't know if that type of testing happens in Canada or Europe, I've never heard of it, it may be a USA thing.

[Mr. B]

The case really just adds to the mess, but it needs to get sorted: legal at the state level, illegal at the federal and a case to decide a company's employee hiring/firing policy. Sadly, voters only approved one of those.

[WestIndianArchie]

Pro-Management arguments...

Typical.

If management could fire you for consuming an excess # of carbohydrates, I'm sure a bunch of people here would jump on board with that too.

"it's an increased health risk"
"the insurance premiums go up"
"lethargic people bring down the productivity"
"what's wrong with culture fit"
"why should I, a paleo eating compound lifting engineering degree, subsidize some fat ass w/o self control"

WIA

[ElBorrachoInfamoso]

(10-02-2014 06:10 PM)Texas_Tryhard Wrote:  

So you approve of a company being able your restrict your nonwork lifestyle? What if they banned drinkers? Skydivers? Gun owners?

This case is even more egregious. This man was receiving medical therapy and was terminated for it. Do you approve of your employer having a veto option on what medical decisions you make?

As far as I'm concerned it's your natural human right to ingest any substance you want. I still wouldn't hire a meth addict though.

I support liberty. That means I support your right to smoke crack and someone else's right not to hire you.

[The Beast1]

(10-02-2014 08:18 PM)Laner Wrote:  

What people do on their own time, after work, is of no concern of mine unless the repercussions of their lifestyle become part of their work life.

What I cant fathom is that people think its ok to smoke weed while at work. I live in Vancouver, perhaps one of the most liberal smoking cities in the world, and I have yet to come across someone who is able to be more productive while stoned.

I hear all sorts of whining from guys who think that they are more productive or some shit while high. Not likely.

People who smoke weed everyday after work are essentially taking themselves out of the running for any sort of NEW productive work. Its great for a brain switch and I use it on occasion for this reason, but for chronics they have not much of a chance vs a sober person in regards to complex thinking.

I think this one reason that potheads get painted by this broad brush. Instead of having the pro activity they chill and take themselves out of the rush. To each their own, but I cant stand to see guys around me want more out of this world and then go hit a blunt and chill.

My favorite line though when some dude tries to justify "no one can tell I'm high!". Its 2014 bro, everyone can tell your high.

Do you smoke weed? Have you ever smoked weed? I smoke every day. Sometimes before work too and guess what, i'm the most productive member of my team of non pot smokers. I hit the gym daily, cook, pay bills, play violin, help my church, and game broads. Sometimes I'll even have them come home and smoke with me.

The best part is, no one suspects me of being a daily smoker since i'm so active and no one knows i'm stoned in person.

From what I see, non pot smokers are a horribly miserable stuck up bunch. Here in New England everyone looks like stressed out crap while i'm relaxed and productive. Trust me when I say this, drinking alcohol will make you look and feel like crap.

Smoking weed is the opposite of hitting a cup of coffee. Alcohol is a far more damaging drug.

Personally, management shouldn't be hiring people on paleo and low carb diets because of brain fog. The fog I got from a low carb diet was far worse than any brain fog I got from smoking herb (read not any).

(10-03-2014 03:30 AM)ElBorrachoInfamoso Wrote:  

(10-02-2014 06:10 PM)Texas_Tryhard Wrote:  

So you approve of a company being able your restrict your nonwork lifestyle? What if they banned drinkers? Skydivers? Gun owners?

This case is even more egregious. This man was receiving medical therapy and was terminated for it. Do you approve of your employer having a veto option on what medical decisions you make?

As far as I'm concerned it's your natural human right to ingest any substance you want. I still wouldn't hire a meth addict though.

I support liberty. That means I support your right to smoke crack and someone else's right not to hire you.

Agreed, you can easily tell who a meth head is by just looking at the individual. Can their ass when they aren't performing.
Aa

[Ensam]

Weed definitely gives me a fog and I don't perform as well for a few days afterwards. Doesn't mean it's like that for everyone and I'm sure some people perform better in a fog than others do stone cold sober.

Key to the article:

Quote:

The arguments came in the case of Brandon Coats, a quadriplegic man who uses medical marijuana to alleviate his pain and reduce spasms caused by his physical disabilities. Englewood, Colo.-based DISH fired Coats from his job as a telephone customer service worker after he failed a saliva-swab test that revealed the presence of THC, which can remain in the body for up to 40 days after use.

Dude's a quad and using marijuana to alleviate pain. He works on the customer service desk. I have a hard time believing there's any increased risk to the company if he shows up a little stoned. Now if he was operating heavy machinery or responsible for others safety in a significant way it'd be a different story. In those situations I'm fine with a company curtailing off hours activities.

[jamaicabound]

(10-02-2014 09:46 PM)scotian Wrote:  

I have to do pre-employment drug tests at my work, which I don't totally agree with but it makes sense, I work in mines and oil refineries where major accidents happen and people get killed. I can't really understand why office workers, especially in a customer service role at a call centre would have to do drug testing, I don't know if that type of testing happens in Canada or Europe, I've never heard of it, it may be a USA thing.

You make a good point but drug testing proves nothing. If companies really care about drug use they should do impairment testing not drug testing. Drug testing only proves they weren't using drugs prior to being hired, it says nothing about what they do on the job or after they start the job. Granted you probably do weed out some bad apples as anyone who can't quit for a week or two prior to knowing they have a company drug test kind of proves their unworthiness for the job, however you could have a cokehead who did coke 2 days before the drug test and he would pass where as the guy who smoked a joint on the weekend 3 weeks before the drug test fails. Marijuana arguablly the least harmful drug has the longest lifespan in your body, mushrooms are out in a matter of hours, lsd can't really be tested for easily, coke is out in a matter of hours or days.

[Samseau]

(10-02-2014 08:38 PM)Basil Ransom Wrote:  

"It's a sloppy business attitude. Focus on the performance of the employee. Is it lacking or subpar? Fire him, problem solved."

In a perfect world, yes. But you don't exactly know who's going to be productive and who isn't at the point of hiring.

Why is there more drug testing for minimum wage jobs than for office jobs paying several times as much? If anything, higher paying jobs with more responsibilities should be stricter. My guess - that the average weed smoker applying for the office job who is otherwise qualified, is not much less productive or risky as an employee as one who abstains. But for a minimum wage job where the qualifications required are minimal, a drug test can serve as an effective way to keep out thiefs and sucky workers.

If minimum wage employers had perfect information about a prospective employee's productivity, then no, a drug test would not be helpful. But they don't, and there are plenty of minimum wage unqualified workers to choose from. So they do it.

I don't think occasional weed smoking in and of itself hurts an employee's performance. But it's not hard to imagine, that at least among certain strata like the non-college educated, it's associated with being a shittier worker. There's plenty of other sociological data that suggests that the bad shit upper middle class people do, they can shrug off without it hurting their life, while it wrecks those of the lower classes - eg fornication and bastardy.

Interestingly enough, many conversations I've had with office type people (both from my jobs and elsewhere) indicates that many, perhaps most, of the white-collar world sees drug testing as a sign of low-status.

That is to say, if you get drug-tested, your job is low-status. Now obviously, as scotian pointed out, this isn't true in the blue-collar world. Doing manual labor which requires sharp reflexes means drug-testing should be mandatory.

But in the white-collar world, if you get drug tested it's because the job is a high-turnover job with no real challenge, so they are just looking for someone who isn't a total fuckup in life so they won't need to get a new person for the job anytime soon.

[germanico]

(10-02-2014 07:13 PM)frenchie Wrote:  

It's a sloppy business attitude. Focus on the performance of the employee. Is it lacking or subpar? Fire him, problem solved.

Wait, so do you think they would have cared what he did at home if he had been an excellent employee?

They found a way to fire him because they needed him gone.

[TheWastelander]

Quote:

The arguments came in the case of Brandon Coats, a quadriplegic man who uses medical marijuana to alleviate his pain and reduce spasms caused by his physical disabilities. Englewood, Colo.-based DISH fired Coats from his job as a telephone customer service worker after he failed a saliva-swab test that revealed the presence of THC, which can remain in the body for up to 40 days after use.

I don't think using marijuana is a good thing but could DISH Network be any more stupid and callous? You fire a quadriplegic for using medical marijuana he legally owned in his own home? That's terrible.

They were within their rights to terminate his employment but IMO, if he was doing his job just fine, they should've made an exception and looked the other way.

A lot of HR departments are run by inflexible, cold individuals who are usually women lacking empathy. I wonder if that's the case here?

[TheWastelander]

(10-03-2014 12:24 PM)germanico Wrote:  

(10-02-2014 07:13 PM)frenchie Wrote:  

It's a sloppy business attitude. Focus on the performance of the employee. Is it lacking or subpar? Fire him, problem solved.

Wait, so do you think they would have cared what he did at home if he had been an excellent employee?

They found a way to fire him because they needed him gone.

If that's the case they were incredibly short-sighted. Did they think this wouldn't blow up in their faces? It's bad PR.

They could've just let him go for performance issues.

Either they're really dumb or this really was about adhering to policy because HR Uber Alles.

[ElBorrachoInfamoso]

(10-03-2014 12:10 PM)Samseau Wrote:  

(10-02-2014 08:38 PM)Basil Ransom Wrote:  

"It's a sloppy business attitude. Focus on the performance of the employee. Is it lacking or subpar? Fire him, problem solved."

In a perfect world, yes. But you don't exactly know who's going to be productive and who isn't at the point of hiring.

Why is there more drug testing for minimum wage jobs than for office jobs paying several times as much? If anything, higher paying jobs with more responsibilities should be stricter. My guess - that the average weed smoker applying for the office job who is otherwise qualified, is not much less productive or risky as an employee as one who abstains. But for a minimum wage job where the qualifications required are minimal, a drug test can serve as an effective way to keep out thiefs and sucky workers.

If minimum wage employers had perfect information about a prospective employee's productivity, then no, a drug test would not be helpful. But they don't, and there are plenty of minimum wage unqualified workers to choose from. So they do it.

I don't think occasional weed smoking in and of itself hurts an employee's performance. But it's not hard to imagine, that at least among certain strata like the non-college educated, it's associated with being a shittier worker. There's plenty of other sociological data that suggests that the bad shit upper middle class people do, they can shrug off without it hurting their life, while it wrecks those of the lower classes - eg fornication and bastardy.

Interestingly enough, many conversations I've had with office type people (both from my jobs and elsewhere) indicates that many, perhaps most, of the white-collar world sees drug testing as a sign of low-status.

That is to say, if you get drug-tested, your job is low-status. Now obviously, as scotian pointed out, this isn't true in the blue-collar world. Doing manual labor which requires sharp reflexes means drug-testing should be mandatory.

But in the white-collar world, if you get drug tested it's because the job is a high-turnover job with no real challenge, so they are just looking for someone who isn't a total fuckup in life so they won't need to get a new person for the job anytime soon.

I worked for one of the big consulting companies before. We didn't drug test employees.

Some clients, especially pharmaceutical companies, were required by law to drug test new employees and contractors. It was my company's policy that if you failed a client's drug test, you would not be fired, you would merely be put on a different project with a client that didn't drug test.

Basically, we were condoning drug use because we knew anyone who made it through our hiring process was able to do the work, even if they did enjoy smoking weed on the weekends.

[Laner]

Quote:

Do you smoke weed? Have you ever smoked weed? I smoke every day. Sometimes before work too and guess what, i'm the most productive member of my team of non pot smokers. I hit the gym daily, cook, pay bills, play violin, help my church, and game broads. Sometimes I'll even have them come home and smoke with me.

The best part is, no one suspects me of being a daily smoker since i'm so active and no one knows i'm stoned in person.

You are coming across as a stereotypical smoker. Skim read a post, dont listen, and come to the total defense of weed. In my experience, long term smokers pick up a delusional view of the world, essentially that everyone sees things their way.

This is not about Frenchie vs The World. Though I am sure that you are more productive stoned than some people are sober, what I am challenging is to see the flip side of being YOU being sober.

I get the feeling that you are young, and if that is the case then keep on smoking but be aware of a couple things. One is that there are people (likely older) and more experienced than you who are watching you. They know you are an addict and are curious why. If you are as productive as you say you are, they are interested in the path you are taking in life, and want to see if you can add long term value to the community.

Two is that most of the other smokers that you associate with will not have the motivation and drive that you do. As you stated already, you have a negative view of non smokers

Quote:

non pot smokers are a horribly miserable stuck up bunch

. This type of mentality is far more common in smokers than in non smokers. Most non smokers can give shit about other people smoking weed, unless they are friends or family with you, your use causes problems for others, etc.