To Test or Not to Test, That Is the Question …

By John Keen and Christine Kroupa

In November 2012, voters in Colorado and Washington state approved separate initiatives – Colorado Amendment 64 and Washington Initiative 502 – making it legal for anyone over the age of 21 to possess small amounts of marijuana for recreational use.  Following the legalization of recreational marijuana use in Colorado and Washington, employers have been left to wonder what, if any, impact Amendment 64 and Initiative 502 will have on their ability to test and take employment action against employees for use of marijuana.  This is especially true in the construction industry, where safety concerns are paramount.

Difficulty Testing for Marijuana Use

To understand the complications presented by the legalization of marijuana use, employers must understand the problems associated with reliable testing for marijuana use.  The active ingredient in marijuana, tetrahydrocannabinol (THC), enters the body’s bloodstream rapidly and is detectible in the blood for a short time, usually a matter of hours.  THC is then rapidly metabolized into molecules known as metabolites, which are stored in body fat.

This process creates complications for employers testing for marijuana use.  The problem is shared by law enforcement in Colorado and Washington who are attempting to determine how to test impaired drivers for levels of marijuana intoxication.  Blood or saliva tests can demonstrate current intoxication but not the level of intoxication or impairment.  The types of urine tests typically used by employers only demonstrate whether an individual has recently used marijuana, not intoxication or impairment.  Because of the overriding safety concerns in the construction industry, many employers have zero tolerance for drug use and utilize a urine test to detect any recent use of drugs.

Given the Change in State Law, May Employers Test?

Although marijuana is legal at the state level in Colorado and Washington, it is still outlawed at the federal level.  On Aug. 29, 2013, U.S. Attorney General Eric Holder stated that his office would not interfere with the legalization efforts in Colorado and Washington, however marijuana remains a Schedule 1 drug, the highest classification under the Controlled Substances Act of 1970.  The Department of Justice also clarified that it is not waiving the law, but rather is leaving enforcement up to prosecutorial discretion.  Employers can and should lean on the fact that marijuana is still illegal at the federal level when considering revisions to their drug policy.

Employers can also rely on the fact that the state laws and recent court decisions in Colorado and Washington favor employers in the area of drug testing.  Colorado’s Amendment 64 expressly states that the amendment is not intended “to affect the ability of employers to have policies restricting the use of marijuana by employees.”  Initiative 502 does not address drug testing policies, however state court rulings have been supportive of testing.

The Washington Supreme Court ruling in Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 171 Wn.2d 736 (Wash. 2011) provides guidance for employers seeking to set testing policies in Washington.  In Roe, the court ruled that Washington’s Medical Use of Marijuana Act (MUMA) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy.  The Supreme Court held that MUMA provides an affirmative defense to state criminal prosecutions of qualified medical marijuana users, but “does not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.”  This holding applies regardless of whether the employee’s marijuana use was while working or while off-site during nonwork time.  The court also noted that marijuana use is illegal under federal law and that Washington patients have no legal right to use marijuana under federal law.

In Colorado, the Court of Appeals recently ruled the use of medical marijuana is not a lawful activity under § 24-34-402.5 C.R.S. 2012, Colorado’s Lawful Activities Statute.  Coats v. Dish Network LLC, 2013 COA 62 (Colo. Ct. App. 2013) offers Colorado employers further guidance regarding an employer’s ability to maintain drug testing policies and, specifically, policies regarding the use of marijuana.

In Coats, the trial court granted the defendant’s motion to dismiss after determining the plaintiff’s medical marijuana use was not a “lawful activity” under Colorado law, specifically the medical marijuana law did not establish a state constitutional right to medical marijuana use, but rather created an affirmative defense from prosecution for such use. In upholding the trial court’s decision, the Colorado Court of Appeals analyzed the meaning of “lawful” and noted that activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law. Therefore, for an activity to be “lawful” in Colorado, it must be permitted by, and not contrary to, state and federal law. Because the plaintiff’s state-licensed medical marijuana use at the time of his termination was subject to and prohibited by federal law, the court concluded it was not a “lawful activity” for the purposes of the Colorado Lawful Activity Statute.

Interestingly, the Colorado Supreme Court agreed to review the Court of Appeals’ decision for the following two issues:

1. Whether the Colorado Lawful Activities Statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect the job performance; and,
2. Whether the Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered in the state of Colorado.

Employees and employers are anxiously awaiting a decision in the Coats case to provide guidance regarding Colorado’s Amendment 64.

Employers in the construction industry should feel more confident that a prohibition against, and testing policies for, all drugs that are illegal under state and federal laws will remain valid in Colorado and Washington despite the recent changes in state laws.  A well drafted testing policy is important to protect construction employers from potential challenges when the need arises.  It is advisable for every Colorado and Washington employer to have their employment policies reviewed by an attorney to ensure they do not get caught in a wave of litigation over the use and testing for marijuana in their respective states.