Pubdate: Mon, 08 Sep 2014
Source: New York Times (NY)
Copyright: 2014 The New York Times Company
Author: Jack Healy
Page: A11


DENVER - Brandon Coats knew he was going to fail his drug test. 
Paralyzed in a car crash when he was 16, he had been using medical 
marijuana since 2009 to relieve the painful spasms that jolted his 
body. But he smoked mostly at night, and said marijuana had never 
hurt his performance answering customer calls for a Colorado 
satellite-television provider.

So when his employer, Dish Network, asked Mr. Coats to take a random 
drug screen, he was not surprised when the test came back positive 
for marijuana. He told his bosses why, but when he got to work the 
following week, he said, "my card wouldn't open up the door." He was 
fired for violating the company's drug-free workplace rules, despite 
having a medical marijuana card.

"There are a lot of people out there who need jobs, can do a good 
job, but in order for them to live their lives, they have to have 
this," said Mr. Coats, who is 35. "A person can drink all night long, 
be totally hung over the next day and go to work and there's no 
problem with it."

But when it comes to marijuana, Mr. Coats and other users are 
discovering that marijuana's recent strides toward the legal and 
cultural mainstream are running aground at the office. Even as 23 
states allow medical or recreational marijuana, employment experts 
say that most businesses are keeping their drug-free policies. The 
result is a clash between a culture that increasingly accepts 
marijuana and companies that will fire employees who use it.

Even in Colorado and Washington, the country's most 
marijuana-friendly states, a glance at online classified ads lays out 
an unwelcome landscape for marijuana smokers. "Please do not apply if 
you are NOT drug free or carry a medical marijuana card," warns one 
job listing for a mechanic in Denver. A Chevrolet dealership in the 
suburb of Aurora tells applicants, "We do screen for medical or 
recreational marijuana." In Seattle, a recycling company looking for 
a welder cautions that they are a "zero-tolerance company including 

Employers and business groups say the screenings identify 
drug-abusing workers, create a safer workplace, lower their insurance 
costs and, in some cases, are required by law. But marijuana 
advocates say the prohibitions amount to discrimination, either 
against people using marijuana to treat a medical condition or 
against people who smoke it because they simply have the legal right 
to do so, off the clock and away from the office.

"It wasn't like I was getting high on the job," Mr. Coats said. "I 
would smoke right before I go to bed, and that little bit would help 
me get through my days."

On Sept. 30, he will take that argument before the Colorado Supreme 
Court in a lawsuit challenging his 2010 firing. For years, courts in 
Colorado and across the country have ruled against marijuana users, 
saying that companies have the right to create their own drug 
policies. But legal experts say that if Mr. Coats prevails - he lost 
2-1 in an appellate ruling - his case could transform how businesses 
must treat marijuana users.

Mr. Coats's lawyer, Michael Evans, argues that Mr. Coats's use of 
medical marijuana should fall under a state law that prohibits 
companies from firing workers for legal, off-duty activities that 
might rankle an employer. Dish Network argues that smoking marijuana 
can hardly be considered legal because it breaks federal law.

If Dish loses the case, the company wrote in a brief to the court, 
"Dish (and every other Colorado employer) can no longer maintain a 
drug-free policy" and companies across the state could risk losing 
federal contracts because they no longer complied with federal 
drug-free workplace laws.

After Colorado voted in 2012 to allow adults to buy, sell and grow 
their own recreational marijuana, scarcely any businesses relaxed 
their own rules, according to a survey by the Mountain States 
Employers Council, which represents 3,500 companies. Seventy-one 
percent left their drug-testing policies in place, and 21 percent 
actually imposed stricter rules.

"People were scared they were going to have a stoned work force," 
said Curtis Graves, a staff lawyer for the group.

A survey by Quest Diagnostics, which conducts millions of drug tests 
across the country, found that positive results for marijuana rose in 
both Colorado and Washington in the year after legalization measures 
passed. In Colorado, the number of urine samples testing positive for 
marijuana rose to 2.3 percent in 2013 from 1.92 percent in 2012. In 
Washington, the rates rose to 2.38 percent from 1.94.

A positive test result can derail a career, say people who have been 
fired for marijuana use. In New Mexico, a physician assistant named 
Donna Smith who had used medical marijuana to treat symptoms of 
post-traumatic stress disorder lost her health care job in February 
after failing a drug test.

The health care provider where she had been working, Presbyterian 
Health Services, said Ms. Smith had worked for an outside staffing 
agency and had a temporary assignment with Presbyterian. One 
condition of that work was a drug screen. "Presbyterian is committed 
to patient safety and we believe that a drug-free workplace is a key 
component," Presbyterian said in a statement.

Ms. Smith, who is suing Presbyterian, said she had been able to find 
only one sporadic job since then, and has cashed out an I.R.A. and 
spent her savings. "I can't find any work," she said.

Recently a handful of businesses in Colorado cautiously opened up to 
marijuana, said Mr. Graves of the Mountain States Employers Council. 
They decided their fears were overblown, and have asked the group to 
help them revise their drug-testing policies to remove marijuana from the mix.

In Washington State, the Titus-Will network of car dealerships and 
service centers now tells job applicants they will have to pass a 
"pre-employment profile test, background check and drug screen 
(excluding marijuana)." In Colorado, a handful of technology and 
marketing firms that do not test for drugs have told their employees: 
Do what you want off the clock, but come to work sober and alert.

Even the marijuana industry has grappled with whether to drug-test 
its employees. Outlawing marijuana use would be the height of 
hypocrisy. But in a closely scrutinized industry that deals with huge 
amounts of cash, potent doses of cannabis oil and marijuana-laced 
foods, businesses say their workers cannot be stoned at work.

At Open Vape, which sells marijuana vaporizers, employees take a 
computer test to determine their baseline cognitive skills. If a 
worker comes back from a break red-eyed and acting hazy, the company 
has them take the test, to see if anything is amiss.

"Just as we wouldn't want folks going out and having a two-to 
three-martini lunch, we shouldn't have folks going out and smoking a 
joint during lunch," said David Kochman, the company's general counsel.

But the message has not gotten through to everyone. Todd Mitchem, who 
runs a marijuana consulting business, said he recently got a phone 
call from an man interested in attending a marijuana job fair called 
CannaSearch in Denver later this month. But the applicant had one 
question: Would there be a room where people could smoke pot?

"The answer is no," Mr. Mitchem said. "You can't do that at the job fair."
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MAP posted-by: Jay Bergstrom