Pubdate: Fri, 27 Dec 2013
Source: Denver Post (CO)
Copyright: 2013 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Authors: Steve Raabe and Andy Vuong

FIRING OVER LEGAL USE OK

A Little-Known Detail of the New Law Gives Employers Discretion.

As recreational cannabis sales begin Jan. 1, one fact is sometimes 
overlooked: Employers still can fire workers for using it on-or off-duty.

State law gives employers full authority to impose any drug 
prohibitions they wish, despite it being legal in Colorado for adults 
to possess and consume marijuana.

"Employers hold all the cards," said Curtis Graves, a staff attorney 
for the Mountain States Employers Council.

So you smoke only off-duty? Not good enough. Consuming just at home 
provides no protection if your workplace drug test comes back 
positive for marijuana.

Many employees maybe enjoying a false sense of security stemming from 
passage last year of Amendment64, which legalized marijuana 
possession for adults in Colorado.

"Right now there is a great deal of confusion," said attorney 
Danielle Urban of labor-law firm Fisher & Phillips in Denver. "People 
are surprised to learn that they can lose their jobs."

Amid the euphoria of approving legal pot, some cannabis enthusiasts 
may have overlooked a key piece of fine print in Amendment 64.

Nothing in the law will "affect the ability of employers to have 
policies restricting the use of marijuana by employees," the amendment states.

That includes getting high at work or even after hours, according to 
legal experts and judicial rulings.

Tests can't determine exactly when pot was ingested. Marijuana 
metabolites can remain in the human body for weeks, so employers 
don't know whether a positive test resulted from on-or off-duty use. 
Nor do they care, if they have a strict no-drug policy.

Mason Tvert, who co-directed the Amendment 64 campaign, said a double 
standard exists because employers would almost never sanction a 
worker for off-duty alcohol use, unless it was affecting job 
performance. Yet with cannabis consumption, penalties can result even 
if employees use it legally off-duty and are not impaired at work.

"It's really irrational to punish employees for engaging in lawful 
activities outside of the workplace," Tvert said.

Despite legalization of recreational use in Colorado, it is still a 
taboo subject for employers. Several Denver-area businesses declined 
to comment about their marijuana policies.

A couple of companies, though, say their position won't change, at 
least initially.

"We have discussed the new law and how it's going to impact our 
business with recruitment and overall operations for quite some 
time," said Jeremy Ostermiller, CEO of Denver-based Altitude Digital. 
"There is still uncertainty how the federal government will respond 
to the states' new legal-marijuana laws. We don't have rules 
concerning off-hours marijuana use. At this time, we are not changing 
our drug testing policy, but we embrace and fully support the new 
Colorado law."

Altitude Digital, which employs 50, does not test its workers for drugs.

Ostermiller said he worked with pot-friendly artists such as Snoop 
Lion and Cypress Hill prior to starting his online video marketing business.

"Many believe their marijuana use has fostered creativity, an 
important and valuable asset to any business," Ostermiller said. 
"While there is a lot of misinformation about marijuana use, 
especially how it affects the body, Altitude Digital encourages 
creativity by cultivating a fun and collaborative company culture."

Denver-based Spire Media, a Web designing and consulting firm, also 
doesn't test its employees for marijuana.

"I'm not going to fire somebody if they smoke pot, but I don't want 
them doing it in the office," said Spire CEO Mike Gellman.

His position won't change after the new law goes into effect, he says.

"I know personally I wouldn't be able to do my job if I smoked pot," 
Gellman said. "But I know some people can program and do better 
programming while smoking pot, and that's fair."

Graves, of the Mountain States Employers Council, said employers in 
high turnover service industries such as retail, hotel, restaurant 
and casino may be less inclined to use routine drug screenings 
because they already are challenged with maintaining staffing levels.

In addition to Amendment 64's clear language that gives employers 
full discretion in setting marijuana policies, a Colorado court case 
this year affirmed an employer's right to prohibit medical marijuana 
use, even off-duty for employees with registered medical status.

Dish customer-service employee Brandon Coats, a quadriplegic, sued 
Dish after the satellite-TV company fired him for testing positive 
for marijuana in a random drug test.

Coats acknowledged that he used legal medical marijuana off-duty to 
help control muscle spasms but said he was never under the influence 
at work. Nonetheless, Dish fired him after the positive test.

In a precedent-setting decision, the Colorado Court of Appeals upheld 
the firing. The court said that since marijuana is illegal under 
federal law, employers can sanction their workers and are not bound 
by Colorado's Lawful Off-Duty Activities Statute, which otherwise 
prevents employers from interfering in employees' non work activities.

Coats' attorney, Michael Evans, has appealed the ruling to the 
Colorado Supreme Court.

"Unless you've got a guy who is obviously impaired," Evans said, "you 
should hold off on terminating him."
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MAP posted-by: Jay Bergstrom