Coates v. Dish Network – A big win for zero tolerance drug free workplace programs

The five-year wait is over. Monday morning the Colorado Supreme Court ruled in favor of Dish, in the Coates v. Dish Network case.

What does this mean?

While medical marijuana is legal in Colorado, employers can still fire patients for using it — even if they aren’t impaired at work.

According to the Colorado court…”The Supreme Court holds that under… Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law, therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

This is a big win for companies who utilize a zero tolerance drug free workplace policy. A zero tolerance policy gives the employer the right to take action against an employee (up to termination) for simply having a detectable amount of THC in their system. This ruling establishes that it is not a requirement for an employer to prove impairment which was something many employers were concerned could be a legal gray area.

Dish Network’s drug policy clearly states termination as potential disiplinary action against users of prohibited substances. It reads, “To ensure a safe and productive work environment, Dish Network reserves the right to administer nondiscriminatory, unannounced random drug testing. No employee shall report to work or be at work with alcohol or with any detectable amount of prohibited drugs in the employee’s system. Any violation of this statement of policy will result in disciplinary action up to and including termination.”

Meghan Martinez, the lawyer for Dish Network argued “He smoked marijuana while at home, but he crossed the threshold [to his office] with THC in his system. The use is the effects, it’s the THC, it’s the whole point of marijuana. So when he came to work, he was using.” Brandon Coates, who was paralyed in most of his body due to an automobile accident, was fired five years ago by Dish even though he was a patient on the state registry for madical marijuana.

Currently Arizona and possibly Delaware are the only states which maintain state law prohibiting employers from “discriminating” against an employee who has tested positive, so long as they are a registered medical marijuana patient and are not performing a safety sensitive job.

What does this mean for your drug free workplace policy?

Employers can now incorporate a zero-tolerance policy with much stronger conviction that their program will survive legal challenge. Rapidly changing public opinion and state law have driven some employers to consider changing thier drug testing policies to be more accomodating to marijuana users, however they do so at the risk of having to define what constitutes company accepted off-duty use, or what constitutes valid medical use or when an employee might be considered impaired. All scenarios which increase the complexity of your program and cause confusion among employees and supervisors.

Tips for dealing with marijuana in your organizations drug free workplace program…

• Review your state’s laws on discrimination against marijuana users. Make sure your policies are consistent with state anti-discrimination statutes.
• Continue to comply with federal regulations. Remember all DOT drug testing prohibits Medical Review Officers from over turning positive marijuna laboratory tests for any reason. Marijuana remains completely illegal at the federal level and it is a prohibited substance. Any supervisor who has reasonable suspicion that an employee performing a safety sensitive duty is required to immediately remove them from their duties and initiate a reasonable suspicion drug test.
• Review your drug-use and drug-testing policies to ensure that they clearly explain your expectations regarding impairment, marijuana use outside of company time and drug testing or that employees are aware of your zero tolerance policy (if applicable).
• Make sure you are prepared to consistently follow your stated procedures.
• As part of your review, articulate whether you wish to ban all employee drug use or merely impairment.
• Communicate your policy to your employees – once as mandory as recurring as best practice.