Medical marijuana patients who legally use pot on their own time away from the workplace but lose their job when they fail a drug test shouldn’t surrender without a fight, according to an attorney on that legal frontier.
Kimberlie Ryan, a Denver attorney who specializes in employment law, said too many people in that situation figure they have no right to challenge dismissal because Colorado is an at-will employment state. They figure their employer has a right to fire them with no questions asked.
That’s not the case, she said this week during a presentation at the 2014 Aspen Legal Seminar held by the National Organization for the Reform of Marijuana Laws. The organization holds an annual seminar in Aspen. This year’s event attracted about 125 attorneys and other interested parties, according to organizers. Ryan was one of the featured speakers Thursday at The Gant conference room.
Ryan said an increasing number of employers are realizing it’s a shaky legal position to fire employees for using medical marijuana off the job, she claimed. In cases she has handled, the employers tend to settle the cases rather than expose their employment policies in a court fight, she said.
“Don’t let people believe they don’t have rights,” Ryan said.
There is a misperception that employees have no rights to use medical marijuana outside the workplace because of some court rulings, she said. But those rulings are on narrow points of law that might not carry over to other cases, Ryan said. They have been inaccurately reported, she claimed.
The rights of medical marijuana patients in the workplace are expected to grow into a bigger legal dilemma now that 21 states have joined Colorado in approving that type of pot use. Ryan said she expanded her practice into the rights of medical marijuana patients seven years ago when a friend who was using marijuana to treat MS got fired from her job. The number of cases in Colorado exploded about five years ago, she said.
In one case that she cited, a 23-year-old man was on medical leave from his job at a warehouse to treat testicular cancer. He used medical marijuana as part of his treatment but stopped using it prior to returning to work. He was tested for drugs and failed because remnants of his pot use remained in his system, according to Ryan.
Another case involved a “grandma” who regularly found work through a placement agency and eventually was offered a permanent position. She accepted but decided she should tell them she was a lawful medical marijuana user who treated a longtime ailment. She was fired on the spot, according to Ryan.
Ryan said she has negotiated hundreds of thousands of dollars in out-of-court settlements for clients such as those.
It is unfair to portray all companies as looking for a way to terminate medical marijuana users, Ryan said. Many are grappling to balance rights of medical marijuana users with drug-free-workplace rules.
“We have companies that are trying to figure out what they’re going to do with their drug policies now,” she said.
On the other hand, Ryan suspects some employers are targeting employees who possess medical marijuana cards with allegedly random tests so that they can terminate them.
Amendment 20 of the Colorado Constitution, approved by voters in 2000, allows medical marijuana use.
“It’s very clear that employers can prohibit use at work,” Ryan said.
Some employers have tried to stretch their powers into restricting medical marijuana use off-site. Ryan challenges that interpretation.
She also contends that employers confuse a positive test result with use on the job without justification. The presence of THC in a drug test sample shouldn’t be equated with impairment, she said, because it could be showing up as the result of legal use outside the workplace.
While her cases have been settled out of court thus far, another one has worked its way up to the Colorado Supreme Court. Coates v. Dish Network will test her assertion that medical marijuana patients can use the drug outside work without facing termination if they fail a drug test. She is among some attorneys who have filed a brief to join that case.
“I totally think we’re going to win,” Ryan said. “If not, hopefully the next time.”
Until the law is clear, she believes that many medical marijuana patients who are selected to take a workplace drug test — and know they’re going to fail — should refuse to take the test. It would be better to challenge termination over insubordination than with a failed drug test at this time, she said.
Ryan contends that drug testing is illegal and that court challenges will continue to chip away at the practice. Many people believe she is looking at the issue with “rose-colored glasses,” she acknowledged, but she insists workplace drug testing will eventually meet its demise.
“In Colorado, there’s no statute that gives them the right to drug test,” she said.
Ryan said there have been no court decisions in Colorado that she is aware of that involve personal use or adult use of marijuana. (She avoids the term “recreational use” because she feels it “diminishes” the reasons that some people use.)
She said personal users probably aren’t on the same footing as medical marijuana users, though she stressed that every case is different and she couldn’t make a blanket statement.
“I don’t think it’s necessarily safe for someone to say, ‘OK, I’m going to use it on Friday night (while off-duty) knowing that my employer has a very strict, zero-tolerance policy.’ Because at this point, though I believe that the law recognizes the constitutional rights to do this, they would still probably have to establish that by filing a lawsuit against their employer when they get fired,” Ryan said.