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Old 08-13-2014, 03:14 AM  
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Lawsuit In Colorado Over Drug Tests At Work

Colorado Case Puts Workplace Drug Policies To The Test
by Yuki Noguchi


A car accident crushed Brandon Coats' upper spine when he was 16, leaving him unable to walk. His muscles still spasm, disrupting sleep and causing pain.

"If I'm out in public it's embarrassing," Coats says. "It's always uncomfortable. If I smoke marijuana, it almost completely alleviates it" — more, he says, than other prescriptions.

Coats smokes at night, and says he was never high when answering customer calls at . "I was really good at my job," he says.

But five years ago, after he was called in by supervisors for a random drug test, he became persona non grata at the company.

"I went to open up the door and my card wouldn't open up the door anymore," Coats says.

It's been 25 years since the federal was passed, creating requirements for federal government workers and contractors. Many companies, including Dish Network, followed suit, and today more a third of private employers have drug-testing policies.

Although marijuana is now legal in two states and approved for medical use in nearly half, the drug policies of many companies haven't kept pace.

Coats has sued Dish Network over its marijuana policy; his case is now before the Colorado Supreme Court.

"We're not pushing for use at work," says Coats' attorney, Michael Evans. "We're pushing for, if you're in the privacy of your own home, you're registered with the state and abiding by the constitutional amendment, is that an OK reason for your employer to fire you?"

Since Evans sued Dish, Colorado has legalized pot, making it a regulated substance, like alcohol. But, as Evans notes, workplaces still treat pot — and test for its use — in a manner very different from alcohol.

"The test that Dish did was a saliva test," Evans says, "and all the test was concerned about was, 'Is THC present, yes or no?' "
Even if students have a prescription for pot, marijuana remains illegal under federal law. Colleges that let students self-medicate on campus could jeopardize their federal funding.

And therein lies a problem. The standard urine test most commonly used in employer drug testing measures the presence of THC – a psychoactive compound in marijuana that persists in the body for days, weeks or even longer. So a positive marijuana test doesn't necessarily mean the person taking the test is high, or has even used the drug recently.

Barry Sample is director of science and technology for Quest Diagnostics, which conducts millions of drug tests. He says there may eventually be intoxication tests for pot that are more like the breathalyzer's detection of recent alcohol use. "It might be possible at some point, but it's still developing," he says.

For now, businesses are neither changing nor relaxing the way they test for pot. In a 2011 survey of major employers by the , more than half the companies responding said they conduct drug tests on all job candidates. And that raises some questions for businesses, says the society's Deborah Keary.

"If you had a martini on Saturday night, or smoked pot on Saturday night, but you're fine on Monday morning, how is Saturday night the employer's business?" Keary says. "So I really think they're going to have to change the way they do testing and define impairment."Lewis Maltby, president of the National Workrights Institute.

And at least in Colorado, the legalization of pot is putting employers in even murkier legal territory.

Under state law, employers can prohibit use of marijuana at work. But another state law, the "Lawful Activities" statute, prohibits an employer from discharging an employee for engaging in lawful activity of the business during nonworking hours.

"And so that's where everything really gets muddied up," says Lara Makinen, legislative affairs director in Colorado for the Society for Human Resource Management. She says employers are getting a very mixed message.

"We're being told, 'Keep your policy as it is, but proceed with caution, because if people are fired, like Mr. Coats, we probably will see lawsuits,' " Makinen says.

Dish Network, the defendant in the Brandon Coats case, declined to comment. But the company has said it is sticking by its drug-free policy, which it says is consistent with federal law — law that still considers pot an illegal substance.

Oral arguments for Coat's case are set to begin in late September.

http://www.npr.org/blogs/health/2014...es-to-the-test
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Old 08-13-2014, 04:00 PM   #2
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Can't go to work under the influence of alcohol. Don't see how this is any different.
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Old 08-13-2014, 04:05 PM   #3
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Old 08-13-2014, 04:09 PM   #4
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I will be pleased if the court rules against Mr. Coats.
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Old 08-13-2014, 04:17 PM   #5
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Originally Posted by HoneyBadger View Post
Can't go to work under the influence of alcohol. Don't see how this is any different.
It's very different. Unlike alcohol, the tester has no way of knowing how impaired the user is, or even when they actually used it. You could have smoked a joint last weekend outside of work, but still test positive for THC in the middle of the week even though you're not actually under the influence of it at the time you were tested. That's the whole point.

THC can be in your system and detectable by blood tests long after you're actually under the influence. There's currently no cost effective way to test for whether a person is under the influence at that very moment. Only whether they've been under the influence in the last few weeks. There's also no easy way to detect the level of impairment. And those are huge differences when compared to alcohol testing.
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Old 08-13-2014, 04:20 PM   #6
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Sounds like this chap should find employment with a company which doesn't test for pot.
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Old 08-13-2014, 04:25 PM   #7
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If it's a medical use than I don't see where there should be a problem for this guy. That is unless the job requires using machinery where they can hurt themselves under any other drugs, including medical.

On the other hand, ever place an order in a restaurant where it keeps coming back wrong? If so, it's a pot head usually.
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Old 08-13-2014, 05:34 PM   #8
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Stoners will get beat so bad on this. And employers will can everyone they catch.
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Old 08-13-2014, 05:44 PM   #9
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Quote:
Originally Posted by Fish View Post
It's very different. Unlike alcohol, the tester has no way of knowing how impaired the user is, or even when they actually used it. You could have smoked a joint last weekend outside of work, but still test positive for THC in the middle of the week even though you're not actually under the influence of it at the time you were tested. That's the whole point.

THC can be in your system and detectable by blood tests long after you're actually under the influence. There's currently no cost effective way to test for whether a person is under the influence at that very moment. Only whether they've been under the influence in the last few weeks. There's also no easy way to detect the level of impairment. And those are huge differences when compared to alcohol testing.
It actually doesn't even test for "under the influence" since what the test for MJ looks for is what the body produces after being under the influence.

You could smoke a big old joint immediately before a piss test and pass if you hadn't smoke at all before hand.

But otherwise, everything you say about the timetable is true.
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Old 08-13-2014, 05:45 PM   #10
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Originally Posted by HonestChieffan View Post
Stoners will get beat so bad on this. And employers will can everyone they catch.
But another state law, the "Lawful Activities" statute, prohibits an employer from discharging an employee for engaging in lawful activity of the business during nonworking hours.

Going to have to find a way to prove employees are under the influence at work.
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Old 08-13-2014, 05:46 PM   #11
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But another state law, the "Lawful Activities" statute, prohibits an employer from discharging an employee for engaging in lawful activity of the business during nonworking hours.

Going to have to find a way to prove employees are under the influence at work.

Yea buddy. That dog won't hunt.
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Old 08-13-2014, 05:47 PM   #12
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Sounds like this chap should find employment with a company which doesn't test for pot.
Or alternatively, they are free to start their own business and forgo testing their own employees. We call that the "LoneIguana Option"
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Old 08-13-2014, 05:48 PM   #13
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Yea buddy. That dog won't hunt.
An actual state law protecting employees during the off work hours won't hunt?

Sure.

That's why this made it to the State Supreme Court.
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Old 08-13-2014, 05:49 PM   #14
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Or alternatively, they are free to start their own business and forgo testing their own employees. We call that the "LoneIguana Option"
Small government conservatives supporting companies attempting to regulate lawful activity away from work.
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Old 08-13-2014, 06:42 PM   #15
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I don't think small government conservatives have much of any problem with private industry making it's own decisions.
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