Nov. 7 (Bloomberg) -- The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job.
Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules.
A majority of Americans now favor legalization, according to a Gallup Poll last month showing that 58 percent support decriminalization, an increase of 10 percentage points in one year. Seventy-six percent of doctors worldwide favor using pot for medicinal purposes, according to a May poll published by the New England Journal of Medicine. Forty-eight percent of U.S. adults reported using it, according to a Pew Research Center survey published in April.
Those shifts in public opinion haven’t triggered changes in corporate drug policies at some of the largest U.S. companies.
Issaquah, Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues.
“I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview.
When Coats saw his name on a list of 43 employees asked to take a random drug test in 2010, he told his supervisor at the Littleton, Colorado, office that he was a licensed medical marijuana user. Coats, paralyzed in a car accident at 16, uses the drug to ease spasms triggered by his condition.
“If I smoke a little bit in the evening, it calms me down,” Coats said in an interview.
The company does not dispute Coats’ claim that he never came to work under the influence of tetrahydrocannabinol, or THC, the psychoactive ingredient in the cannabis plant, according to his lawyer, Michael Evans. Coats said he never received a poor performance review while at Dish.
Coats failed a saliva test which can detect the presence of THC in the system, though not the amount or the type, said Evans, principal of the Evans Law Firm in Denver. Like urine tests, the preferred method for employers, saliva tests can’t identify the active component of THC that creates the euphoria often associated with using pot.
“We don’t dispute that THC was in his system,” Evans said in an interview. “THC is not enough. You need to have THC plus something. THC plus poor work performance. THC plus red, bloodshot eyes. THC plus the smell of marijuana.”
In the weeks between failing the drug test and his termination in June 2010, Coats said his supervisors seemed unsure how to proceed.
“I actually had a couple meetings with them,” Coats said. “They definitely seemed conflicted. I guess they had never had this come up before.”
Bob Toevs, a spokesman for Englewood, Colorado-based Dish, declined to comment directly on Coats’ case.
“As a national company, DISH is committed to its drug-free workplace policy and compliance with federal law, which does not permit the use of marijuana, even for medicinal purposes,” Toevs said in an e-mail.
Employers in Colorado cannot fire someone for an off-duty activity that is legal, Evans said. Dish argued that “Coats’ marijuana use cannot be a ‘lawful’ activity,” when it violates federal law, according to legal briefs filed in the case.
Coats has yet to find a job since Dish fired him three years ago.
In April, the Colorado Court of Appeals upheld his termination ruling that while his use of marijuana was lawful under state law, it was prohibited by federal statute. Coats has appealed to the state Supreme Court, which has yet to say if will hear his case.
Voters in Washington and Colorado legalized pot a year ago. In an Aug. 29 memo, U.S. Deputy Attorney General James Cole said the Justice Department wouldn’t intervene in the states’ pot regulations, so long as they prevented out-of-state distribution, access to minors, impaired driving and kept revenue from going to gangs and cartels.
In Congress, Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, said in an Aug. 26 statement that “these state laws should be respected.”
Drug tests like the one Coats failed typically detect a metabolite of THC in fatty tissue that can remain for months, while cocaine typically washes out of the body within a day or two, according to Paul Armentano, deputy director of Norml, the organization that advocates for marijuana legalization.
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
A House bill from California Republican Dana Rohrabacher to give state marijuana laws priority over the U.S. Controlled Substances Act has 20 co-sponsors, ranging from Arizona Democrat Raul Grijalva, among the most liberal members of Congress, to Justin Amash of Michigan and Steve Stockman of Texas, both Republicans.
For Coats, that change can’t come soon enough.
“I need marijuana to live my life,” he said.
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