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By: Joshua M. Lott
There is no comprehensive federal law that regulates drug testing of employees in the private sector, except particular employees in specific industries such as transportation. As a result, many states have enacted legislation regulating when, why, and how private employers may conduct drug testing on their employees. Generally speaking, drug testing in the private employment context is presumed lawful unless there is a specific restriction in a state’s law. However, even in states with no restrictions on employee drug testing, employers may be at risk for claims of wrongful termination, invasion of privacy, and defamation, to name just a few, depending upon the manner in which the drug test is administered or how the test results are used. Additionally, as more and more states consider legislation to legalize the medical and recreational use of marijuana, employers who drug test their employees need to be aware of how these laws can create additional litigation risks.
Since 1996, twenty-three states have passed laws legalizing the use of medical marijuana, while Alaska, Colorado, Oregon, Washington, and Washington D.C have legalized marijuana for recreational use. Legislation to legalize medical marijuana is currently pending in Georgia, Florida, Indiana, Kansas, Missouri, Nebraska, North Dakota, Pennsylvania and South Dakota.
A small number of states where medical marijuana is legal prohibit employers from taking adverse employment action against employees because of their use of medical marijuana. For example, Rhode Island’s medical marijuana law provides that employers may not refuse to employ “or otherwise penalize, a person solely for his or her status as a cardholder.” G.L. § 21-28.6-4(c). Other states’ medical marijuana laws are silent on the issue, while some, like Colorado, explicitly state that employers are not required to “accommodate the use, consumption, or possession of marijuana in the workplace . . . .” Colo. Rev. Stat. § 12-43.4-104. Nevertheless, even in states where employers are free to develop zero tolerance workplace drug policies, employers who drug test employees are discovering that the issue of legalized medical marijuana use is more complicated than they originally thought.
Recently, the Colorado Supreme Court took up the case of Brandon Coats, a former Dish Network employee who was fired from his job after testing positive for the active ingredient in marijuana. See Coats v. Dish Network, L.L.C., 303 P.3d 147 (Colo. App. 2013), cert. granted, 2014 WL 279960 (Colo. 2014). At issue in Mr. Coats’ case is whether he may sue his former employer under Colorado’s “lawful activities” statute, which prohibits employers from dismissing an employee because of lawful off-duty activity. Mr. Coats knew that Dish Network had a zero tolerance policy for illicit drug use, including marijuana use, and that the policy applied regardless of whether employees are impaired at work. Mr. Coats has argued that his medical marijuana use is “lawful activity” because it is lawful under state law, while Dish Network contends that federal law should determine the lawfulness of the activity. A decision in Coats v. Dish Network is expected in the next few months.
As illustrated by Coats v. Dish Network, even in states where employers are not required to accommodate marijuana use, the law in this area is in flux and rapidly changing. Employers need to be aware of the applicable marijuana laws of the states in which they operate, and how taking adverse employment action against employees who test positive for marijuana can be a litigation risk.