By now, just about everyone is familiar with the case of Brandon Coats versus his former employer, Dish Network. For those who aren’t, Mr. Coats, a paraplegic, tested positive for marijuana on a drug test and was terminated. He sued, arguing that his off-duty use of medical marijuana was legal, since it was recommended to him by a physician. He lost his case and his initial appeal, and the case is now under review by the Colorado Supreme Court with a decision to come any day.
Whether Mr. Coats wins or loses, marijuana’s legal status is changing. If marijuana were taken off the list of controlled substances, as at least one piece of legislation intends, it could be considered legal in Colorado, essentially on par with alcohol. The difference, of course, is that someone who tests positive for alcohol is probably intoxicated, whereas a positive marijuana test may or may not indicate impairment.
What to do, then?
Employers will never need to tolerate impairment at work, so if a drug test can’t positively indicate marijuana impairment, you’ll need more. I suspect—but don’t yet know—that Colorado might approach the issue like Arizona has.
Arizona’s medical marijuana law says—and I paraphrase—that you can’t terminate or refuse to hire someone solely because of their medical marijuana status or because of marijuana metabolites in their system at levels too low to cause impairment. Of course, this is nonsense, because there is no established metabolite level that equates to impairment.
However, Arizona’s statutes allow an employer to take action against an employee when there is a good-faith belief that the employee is impaired in the workplace. The best way to establish that good faith belief is with a positive drug test plus other indicia of marijuana impairment, such as smell, red eyes, avoidant behavior, etc.
Ensure that your managers and supervisors are trained to recognize the signs and symptoms of drug use. This knowledge will become more important as marijuana’s legal status continues to evolve.