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Old 08-13-2014, 02:14 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, 06:08 PM   #16
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Quote:
Originally Posted by Loneiguana View Post
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.

I think there are two root issues in this case:

1) Testing for MJ at work doesn't determine if an employee is under the influence of it (yet) so a failed test doesn't necessarily reflect work behavior.

2) MJ is still illegal on a federal level so the courts have to determine what "legal" means in this situation.
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Old 08-14-2014, 06:02 AM   #17
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Originally Posted by Prison Bitch View Post
I don't think small government conservatives have much of any problem with private industry making it's own decisions.
I know, that's why I'm making fun of you. Who needs big government when you'll just let corporations police its employees off hours time, right?
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Old 08-14-2014, 06:03 AM   #18
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Originally Posted by listopencil View Post
I think there are two root issues in this case:

1) Testing for MJ at work doesn't determine if an employee is under the influence of it (yet) so a failed test doesn't necessarily reflect work behavior.

2) MJ is still illegal on a federal level so the courts have to determine what "legal" means in this situation.
Which is why this has made it to the State Supreme Court.

(Where are the State Right's rubes on this?)
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Old 08-14-2014, 07:22 AM   #19
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Originally Posted by Loneiguana View Post
I know, that's why I'm making fun of you. Who needs big government when you'll just let corporations police its employees off hours time, right?

Then you're fine with employees making racist/homophobic/bigoted/whatever comments and keeping their jobs - so long as it's "off hours time".


Right?
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Old 08-14-2014, 07:32 AM   #20
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Originally Posted by Prison Bitch View Post
I don't think small government conservatives have much of any problem with private industry making it's own decisions.
I have a problem with this. He is not under the influence at work and has a medical reason and a note from a doctor. The business should be barred from firing him unless performance is bad and then they shluld make every reasonable attempt to accomidate just like if he was blind or missing limbs.
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Old 08-14-2014, 07:37 AM   #21
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Another thing I would like to add is dish network is a crappy place to work and they are a bunch of assholes. They won t even let their employees go outside during the day. Its crazy
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Old 08-14-2014, 08:27 AM   #22
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Unless there have been some changes, the company will win this. Previous court cases have ruled a company may fire an employee for smoking cigarettes because, it is bad for them and increases their insurance costs. It really does not seem too much of a stretch to think companies could refuse to hire or fire a person for being overweight or other risky behavior like riding a motorcycle.
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Old 08-14-2014, 08:40 AM   #23
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Unless there have been some changes, the company will win this. Previous court cases have ruled a company may fire an employee for smoking cigarettes because, it is bad for them and increases their insurance costs. It really does not seem too much of a stretch to think companies could refuse to hire or fire a person for being overweight or other risky behavior like riding a motorcycle.

Isn't Colorado a work at will state?
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Old 08-14-2014, 08:43 AM   #24
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I get the feeling a QT will burn for all of this....
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Old 08-14-2014, 09:48 AM   #25
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Isn't Colorado a work at will state?
Not sure but I think most states are.

These are the situations where my preference for Government not over meddling in the affairs of private business and my preference of business not to meddle in the private lives of their employees sometimes have a head-on collision.
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Old 08-14-2014, 10:22 AM   #26
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A company should have the right to a drug free workplace if they choose. I don't see this guy having any standing.
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Old 08-14-2014, 10:27 AM   #27
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Originally Posted by HonestChieffan View Post
Isn't Colorado a work at will state?
yes
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Old 08-14-2014, 10:29 AM   #28
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A company should have the right to a drug free workplace if they choose. I don't see this guy having any standing.
He's cripple with pain. What if it was other meds? His disabled and being discriminated against because of a decision that's between him and his doctor. IMO he's in a protected class.
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Old 08-14-2014, 10:55 AM   #29
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Dish should have just fired his ass without giving him a reason. "Pack up. Yesterday was your last day. Best of luck."
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Old 08-14-2014, 11:49 AM   #30
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Unfortunately for the Left, they already ceded the moral high ground on what companies can't do to employees off hours when they went after the Mozilla CEO and got him fired for his off hours advocacy. And of course the suspension of the Doplhins CB for his Sam tweets.


since the Left does support terminations for off hour stuff and that means they must remain silent here.
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