The Minnesota Court of Appeals handed employers a rare win under the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), upholding dismissal of a wrongful discharge case after an employee who tested positive for drugs did not comply with the recommended treatment because he wanted to choose a different treatment program. Jones v. Green Bay Packaging, Inc., No. A15-0017 (Minn. Ct. App. Aug. 10, 2015).

By way of background, DATWA, which is codified in Minnesota Statutes Sections 181.950-957, provides specific limitations on how and when employers in Minnesota may test employers and applicants for drugs or alcohol. Among other things, DATWA restricts employers from discharging employees as the result of a first positive drug or alcohol test unless two conditions are satisfied:

(1) the employer has first given the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency; and

(2) the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.

Minn. Stat. § 181.953, subd. 10(b) (2014). (emphasis added)

The plaintiff in this case, Jones, tested positive for marijuana after a workplace accident. Green Bay Packaging presented Jones with a Conditional Reinstatement Agreement (“CRA”), which provided that Jones could retain his employment if he (1) immediately submitted to evaluation by a chemical dependency treatment center approved by Green Bay Packaging, and (2) successfully participated in treatment at that treatment center for the amount of time recommended by the center. The CRA listed treatment centers that Green Bay Packaging had already approved and stated that “additional facilities could be approved by the company.”

Jones then asked that he be allowed to participate in evaluation and treatment at two facilities which were not listed in the CRA, one of which was Riverplace Counseling Centers. Green Bay Packaging approved both additional treatment centers. Jones visited Riverplace for a chemical dependency assessment. After the assessment, Riverplace recommended that Jones receive outpatient chemical dependency treatment at its facility four times per week.

Jones signed the CRA on May 22, but informed Green Bay Packaging on May 24 that he wished to receive his treatment at another facility, Grace Counseling Services. He claimed that he could not afford the gas required to attend the program at Riverplace because it was a 30-minute commute from his home. He requested that Green Bay Packaging approve treatment at Grace because the facility was near his home and its program met only twice per week. Green Bay Packaging denied the request and told Jones that he would be fired if he did not participate in the recommended treatment program at Riverplace. Jones did not participate in the treatment program at Riverplace. Green Bay Packaging then terminated Jones’ employment.

Jones sued Green Bay Packaging as a pro se plaintiff for wrongful discharge under DATWA. The district court dismissed the case on summary judgment and Jones appealed. The issue for the courts was a fairly straightforward matter of statutory interpretation, specifically the phrase “as determined by the employer.” Affirming dismissal, the appellate court held that “[t]he plain language of this phrase provides that the employer must give the employee the opportunity to attend either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, indicating only that the employer is tasked with deciding whether counseling or rehabilitation is more appropriate for the employee.” The result is that employees do not have the unfettered right to choose a treatment center or treatment program.

While the result of the Court’s decision was not surprising, the decision highlights how critical employer engagement is when complying with this statute, including after an employee tests positive. Even if an employer has a compliant policy and conducts testing in a compliant manner, it must still interact with the employee who tests positive to work out and agree on a treatment program, and then continue to monitor the status and ultimate completion of the program. Allowing the employee free reign to choose his or her own program can be problematic, as a federal court in Minnesota has suggested there is no limit on the length of treatment under the statute, other than what is agreed to up front. This level of engagement may require time and commitment by Human Resources personnel but should not be overlooked.

Finally, the decision also highlights the usefulness of a written return to work agreement or, in this case, a “CRA.” The DATWA statute does not require or even mention a CRA or return to work agreement, but employers in Minnesota typically rely on them to confirm that all parties understand their rights and obligations in this situation, and the Court’s implicit endorsement in Green Bay Packaging makes this a best practice for all Minnesota employers.

The Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) have published a new report discussing trends in the growing heroin epidemic in the United States. The July 7, 2015 report examined data from the 2002 – 2013 National Survey on Drug Use and Health, which revealed significant increases in heroin use and addiction, as well as a 286% increase in heroin-related overdose deaths during that period. The greatest increases in heroin use have occurred in groups with historically low rates of heroin use, including women and individuals with private insurance and higher incomes. In the past decade, the gaps between men and women, between individuals with low and higher incomes and between individuals with Medicaid and private insurance have narrowed with respect to use of the drug.

The report also identified risk factors and trends related to the illegal and highly addictive opioid drug. The strongest risk factor for heroin abuse or dependence is abuse or dependence on prescription opioid painkillers. In fact, individuals addicted to prescription opioid painkillers are forty times more likely to become addicted to heroin. In addition, the report found that people who are addicted to alcohol are two times more likely to become addicted to heroin, people who are addicted to marijuana are three times more likely to become addicted to heroin and people who are addicted to cocaine are fifteen times more likely to become addicted to heroin.

“Heroin use is increasing at an alarming rate in many parts of society, driven by both the prescription opioid epidemic and cheaper, more available heroin,” said CDC Director Tom Frieden, M.D., M.P.H. “To reverse this trend we need an all-of-society response – to improve opioid prescribing practices to prevent addiction, expand access to effective treatment for those who are addicted, increase use of naloxone to reverse overdoses, and work with law enforcement partners like DEA to reduce the supply of heroin.”

Employers should consider educating their workforces about the risks involved in the use of prescription opioid medications, as we discussed in this recent blog post, as well as the alarming rise in heroin abuse.  Employers also should consider whether a drug testing program is right for their workplace if they have not already done so.

A Texas oil refinery whose substance abuse policy said an employee “whose drug test is positive, regardless of the reasons for the test,” would be considered in violation of company policy and “will be terminated from employment” meant what it said, a labor arbitrator has concluded. The policy, along with an agreement requiring that an employee seeking assistance for a claimed drug problem abstain from drug use, justified the discharge of an employee who tested positive for marijuana on a return-to-duty drug test, even though the cutoff levels for positive results were low. Valero Services, Inc. and United Steelworkers Int’l LLC, 134 LA (Bloomberg/BNA) 1704 (FMCS Case No. 14/500024, May 4, 2015) (Scheiber, B., Arb.).

The grievant was a process operator at a catalytic generator unit, a pressurized process in the middle of a refinery. Because he experienced severe sleep issues, some depression and eating disorders, he received short term disability benefits. While he was on disability leave, he tried marijuana – just one time, he claimed – hoping it would alleviate his problems. After discussing his marijuana use with the company, he decided to self-identify under the substance abuse policy and asked to be placed in the company’s EAP.

He was allowed to enter the EAP and took a drug test to obtain a baseline reading. He tested positive for marijuana at 27 nanograms/milliliter (ng/ml) of marijuana metabolites. This exceeded the company’s initial drug test cutoff concentration of 20 ng/ml and its confirmatory test cutoff concentration of 10 ng/ml. (By comparison, DOT cutoff concentrations for marijuana or its metabolite for initial and confirmation tests are 50 ng/ml and 15 ng/ml, respectively. However, DOT regulations were not involved here.)

The grievant was required to sign an “Agreement for Continued Employment.” He promised to “totally abstain from the illegal use of drugs” and acknowledged that any further requests for assistance were dependent on keeping his promise. If he used drugs illegally or used alcohol he would be “terminated from employment [with just cause] even if . . . [he] self-identified as needing treatment.”

When the grievant explained his circumstances to the EAP case manager, she said it did not appear he had a problem and there was no reason for him to see her. She told him to take a drug test with his personal physician and to advise her when he was ready to take a confirmation test conducted by the company. She warned him that if the confirmation test result was positive, he would be terminated.

The grievant thereafter took a drug test ordered by his personal physician. The laboratory reported he tested negative for marijuana metabolites at a cutoff concentration of 100 ng/ml. He notified the EAP manager, saying he had received a negative result on his doctor’s test. She told him to arrange for a company drug test collection through Human Resources, which he did. The grievant’s test result this time was positive for marijuana metabolites at 11 ng/ml, one nanogram above the company’s cutoff. A medical review officer verified the result, and the grievant was terminated. His union sought arbitration.

The arbitrator denied the grievance. He concluded, first, that the reasonableness of “the company’s stringent drug policy is evident from the hazardous nature of the company’s business.” A failure of an employee to pay full attention could have “catastrophic” consequences, the arbitrator said. He noted that the substance abuse policy’s cutoffs were consistent with the industry standard. Second, despite the grievant’s promise to abstain from using drugs illegally and his assertions at hearing that he had not used marijuana after taking a baseline drug test a month earlier for the EAP, expert testimony persuaded the arbitrator that the grievant could not have received a 11 ng/ml result on his return-to-duty confirmation test unless he had used marijuana recently. He would have been at zero level had he actually refrained, according to the company’s expert (a faculty member in toxicology and pharmacology at a state university medical school and published author). Moreover, the employee had been warned of the consequence of a positive test result.

That the grievant said he was unaware of the company’s low cutoff threshold for a confirmation test and relied on the result obtained from his physician’s drug test did not excuse his use of marijuana in violation of his agreement, the arbitrator reasoned. Also unavailing was the fact that the EAP caseworker concluded there was no need for grievant to enter into a course of treatment. Based on a single use of marijuana in a six-month period, the arbitrator said, it was reasonable for the case manager to reach that conclusion. The employee’s long record of employment and “‘unblemished service’” record also failed to mitigate the punishment.

“In this case,” the arbitrator wrote, “the Substance Abuse Policy and the Agreement for Continued Employment leave no room for arbitral discretion. They explicitly provide for termination of an employee whose drug test is positive.” Coupled with the company’s consistent enforcement of its Agreement for many years, the arbitrator could find no basis for overturning the discharge.

A labor arbitrator has upheld the grievance of a school bus driver who was terminated from her job with a bus company after she brought alcohol-laced cupcakes to work, and offered them to other employees. He found that she was not fired for “just cause” under the collective bargaining agreement because the bus company’s policy barring the presence and use of “intoxicating beverages,” on which the employer relied, was inapplicable to the grievant’s alcohol-infused cupcakes. First Student, Inc. and Teamsters Local Union 957, 134 LA (Bloomberg/BNA) 1699 (May 26, 2015) (Fullmer, J., Arb.).

Unit employees arranged on-site “potluck” social gatherings or “parties” from time to time, towards the end of the work day. Employees signed up to bring various food and drink. On two occasions in 2013, the grievant brought her “adult” cupcakes to work for these events. On Halloween 2014, she did so again. Her two dozen offerings included “Irish Car Bomb” and “Strawberry Margarita” cupcakes, which contained alcohol.

At about 4:30 p.m., after she had finished working, the grievant got the cupcakes out of her car and made her way to the bus barn. On the way, she offered a cupcake to some of the drivers on the parking lot; it is unclear how many accepted, whether they had runs left, or whether they ate the cupcakes. After she entered the barn, she offered the dispatcher one, too, who accepted the cupcake. The grievant proceeded down the hallway, announcing the availability of the cupcakes, explaining that they contained alcohol, and cautioning employees not to drive a bus after eating them.

The grievant then encountered the employer’s Location Manager, who told her to stop distributing the cupcakes. He retrieved the cupcake from the dispatcher and took it to his office for possible use as evidence. The grievant was later terminated for what the company called “gross misconduct.” It maintained she violated a Company rule prohibiting “possession, use or sale of any intoxicating beverage . . . on Company property or while in possession of a Company vehicle . . .,” and making such violation punishable by “immediate termination,” in the employer’s discretion. Her union grieved her dismissal and brought the issue to arbitration.

The arbitrator upheld the grievance. The rule in question, he reasoned, addressed an “intoxicating beverage,” and according to a dictionary definition, that meant a “drinkable liquid.” No drinkable liquid was involved here, but only cupcakes, which are eaten. Accordingly, he found, the Company’s rule was not broken by the grievant.

Recognizing, however, that “the simplicity of the preceding is beguiling and does not make for an erudite arbitration opinion,” the arbitrator continued. First, he rejected an employer argument that it had consistently enforced its anti-alcohol rule by terminating violators. Those cases, he observed, all concerned drinkable beverages – the “most lurid” involving a bus driver who took a “selfie” in the cab of her bus with a capped bottle of malt liquor pressed to her lips, which appeared in the Cincinnati media.

Second, the arbitrator found the employer had never notified employees of its interpretation of the rule to apply to foodstuffs. (The grievant asserted she had brought such cupcakes to the worksite previously with the employer’s knowledge and acquiescence.) Third, there was no evidence the cupcakes were of an “outlandish” kind that essentially was a beverage. Fourth, there was no evidence that “might be at least emotionally persuasive” that the cupcakes were in fact intoxicating. Although the Company had “sequestered” a cupcake, the arbitrator said, it apparently never tested it for alcohol. Neither was there evidence that any employee actually ate a cupcake that day. Finally, the arbitrator found there was disparate enforcement of the rule. Although it discharged the grievant, it did not identify or discipline other employees who accepted the cupcakes from the grievant and therefore “possessed” an intoxicating beverage in violation of the rule.

Although the arbitrator found that “[t]his rule is assuredly valid in the school transportation industry and indeed could almost be deemed as required by public policy,” its application here, in his view, could not be relied upon to sustain the discharge.

Closing a gap in Hawaii’s medical marijuana law, a new law sets up a regime of vertically integrated grow facilities and retail dispensing licenses for the delivery of medical marijuana to “cardholders” in Hawaii. The stated intent of the new law, signed by Governor David Ige on July 14, 2015, is to ensure a commercialized system for the delivery of marijuana to “seriously ill” individuals in Hawaii.

The new law amends an existing 15-year-old law that allowed the use of medical marijuana, but provided no legal way to obtain the drug. The new retail dispensing provisions close that gap in Hawaii’s law.

The new law, however, did not modify existing Hawaii law on workplace use of marijuana, continuing to recognize the right of employers to maintain “zero tolerance” policies regarding drug use. It expressly states that “the authorization for the medical use of marijuana shall not apply to the medical use of marijuana in the workplace of one’s employment.” Further, even in its medicinal form, marijuana remains a Schedule I drug (similar to heroin) under both Hawaii and federal law — meaning, by law, “no currently accepted medical use and a high potential for abuse.”

The active ingredient of marijuana is fat soluble and it tends to show up on drug tests for a considerable number of days following consumption. Depending on the frequency of use, marijuana can be detected in urine for a period of between a week and a month after consumption. Thus, some Hawaii attorneys representing employees have argued that simply having marijuana metabolites detected during a drug test does not indicate “use” in the workplace. To date, neither the Hawaii Civil Rights Commission nor an appellate court in Hawaii has decided the issue. Thus, while it is an almost universal practice of Hawaii employers to consider a positive marijuana drug test result as a disallowed “use” in the workplace, the issue remains open. Further, the Hawaii courts have not provided any guidance as to whether an employer must allow the use of a Schedule I drug as part of a reasonable accommodation of an employee’s underlying medical condition (i.e., disability). Accordingly, employers should consult with employment counsel to analyze each case of employee marijuana use on an individual basis.

Taxpayers cannot take deductions for business expenses associated with operating a medical marijuana dispensary, according to a recent ruling by the Ninth Circuit Court of Appeals.  Olive v. Commissioner of Internal Revenue, No. 13-70510 (9th Cir. July 9, 2015).

In 2012, the United States Tax Court assessed penalties and fines against San Francisco’s Vapor Room Herbal Center, finding the medical marijuana dispensary inappropriately deducted $654,071 as “business expenses” on its 2004 and 2005 tax returns.   Although the Internal Revenue Code allows individuals and businesses to deduct “ordinary and necessary expenses” from their gross income,  the Code prohibits deductions for any “trade or business [that] consists of trafficking in controlled substances . . . prohibited by Federal law.”  I.R.C. § 280E.  The Tax Court determined that operating a medical marijuana dispensary constituted trafficking a controlled substance prohibited by federal law, regardless of whether it was legal in California.

Martin Olive – the owner of Vapor Room – appealed to the Ninth Circuit, arguing (among other things) that Congress intended § 280E to apply only to “street dealers,” not medical marijuana dispensaries (which, at the time Congress enacted the Internal Revenue Code, did not yet exist).  The Ninth Circuit disagreed, stating that subsequent state legalization of marijuana was irrelevant to the question of whether “marijuana is a controlled substance ‘prohibited by Federal law.’”  As it is clear marijuana is illegal under federal law, the Ninth Circuit upheld the Tax Court’s decision and noted that “i[f] Congress now thinks that the policy embodied in § 280E is unwise as applied to medical marijuana sold in conformance with state law, it can change the statute.  We may not.”

The National Safety Council (“NSC”) has published a report entitled Prescription Pain Medications: A Fatal Cure For Injured Workers, urging employers to educate employees about the dangers of using opioid pain medications – such as addiction and death – while also taking steps to avoid potential liability in workers’ compensation and personal injury litigation.

The NSC report states that injured workers increasingly are prescribed opioid pain medications (such as Vicodin, OxyContin, Percoset, Morphine, Codeine, among many others). The use of opioid pain medications can lead to more serious harm to injured workers, including addiction, overdose and death. According to the Centers for Disease Control and Prevention, more than 43,900 people died of drug overdoses in 2013, of which 16,235 were tied to prescription opioids alone or in combination with other prescription medications or alcohol. The NSC report states that overdose deaths from prescription opioids now exceed deaths from both heroin and cocaine combined.

Additionally, the NSC report lists fifteen court cases in the last six years in which an injured employee died of an opioid-related drug overdose. In some of these cases, the courts held that when injured workers fatally overdose on medications prescribed to treat pain related to a compensable workplace injury, the deaths were compensable by the workers’ compensation program.

NSC recommends that employers and workers’ compensation insurance providers be proactive to reduce their legal risk in situations where employees are being treated with pain medications as follows:

  1. Educate all employees about the hazards associated with prescription pain medication use, especially injured employees. Key educational messages include:
    • The risks of opioid pain medication use, especially for workers with sleep apnea, COPD or other respiratory problems;
    • Hazards associated with using together multiple forms of opioid pain medication such as short-acting and long-acting drugs together;
    • Dangers of using alcohol and sleep aids with opioid pain medications;
    • The risks of addiction and drug overdose.
  2. Require workers’ compensation and network providers to use opioid prescribing guidelines issued by the American College of Occupational and Environmental Medicine. These guidelines include:
    • Informed consent;
    • Thorough patient history with a more detailed screening if treatment continues for more than two weeks;
    • Urine drug monitoring;
    • Checking the state prescription monitoring database;
    • Avoiding co-prescribing benzodiazepines with opioid pain medications; and,
    • Discontinuing treatment with opioids when patients reach meaningful functional recovery.
  3. Use caution and require prior approval for the use of methadone to treat chronic noncancer pain.
  4. Screen injured workers for depression, mental health conditions and current or prior substance use.
  5. Require network providers to utilize state prescription drug monitoring programs.

Employers also should review their workplace drug and alcohol testing policies and update them if appropriate. Many employers believe that their drug test panels cover a wide range of opioid (or opiate) drugs.  A “standard” 5-panel tests for marijuana, cocaine, amphetamines, opiates and PCP.  The opiates tested for in a “standard” drug test panel generally include heroin, morphine and codeine, but not synthetic opiates such as oxycodone, hydrocodone, oxymorphone or hydromorphone (i.e., Vicodin and OxyContin, among others).  Employers who wish to test for potential abuse of prescription opioid painkillers should speak with their drug testing vendors to request an “extended opiates” panel or “synthetic opiates” panel.  Of course, employers should have all positive drug test results reviewed by a Medical Review Officer (“MRO”) (a licensed physician with expertise in analyzing drug test results) to ensure that they do not take adverse employment actions based on lawful prescription drug use.  A MRO discusses the positive drug test result with an applicant or employee to determine whether the applicant or employee is using a prescription drug legitimately.  The MRO may request a copy of the prescription and may request to speak with the prescribing physician.  If the MRO is satisfied that the use of the prescription drug is legitimate, he will verify the result to the employer as a negative.  If the MRO is not satisfied that the use of the prescription drug is legitimate, he will verify the result to the employer as a positive.  This process ensures that employers do not take discriminatory actions against applicants or employees who lawfully use prescription medications.

A California appellate court affirmed an award of emotional distress to two employees who felt pressured to submit to a random drug test. Aro v. Legal Recovery Law Offices, Inc., Case No. D065422 (unpublished) (Cal. Ct. App. Apr. 8, 2015).

Plaintiffs Aro and O’Toole were employed as debt collectors by Legal Recovery Law Offices, Inc. (“LRLO”). They had access to personal information of others such as social security numbers and credit reports. Neither was subject to pre-employment drug testing. The Company generally did not conduct any post-employment drug testing, until the tests at issue in October 2011. The employee manual was revised in 2011 to state that the Company “reserved the right” to conduct drug or alcohol testing “after an accident or with probable cause of impairment while on the job.”

In October 2011, Aro and O’Toole (along with others) were unexpectedly asked to take a drug test. This “random” test occurred on the heels of complaints they lodged regarding unpaid overtime pay. They were told to execute consent forms, told to report to the public bathroom and provide a sample.

Aro objected. In response, a manager advised that his refusal would result in being sent home and the Company would “figure out what to do” with him. Inferring this statement as a threat against his job, he consented, provided his urine sample in a public bathroom while someone watched. He apparently tested positive for marijuana but never was given the result of the drug test.

Similarly, O’Toole (who was a cancer patient with a medical marijuana card) initially objected. Again, a manager told him his refusal would result in the company having to “figure out what to do” with him. O’Toole testified that he started to panic because he knew he would test positive due to his use of medical marijuana. He attempted to provide a urine sample while two men stood outside the bathroom stall, but physically could not. When he went back to his desk to drink more water, he learned his e-mail account was blocked. He refused to submit to any further testing. Afterwards, he emailed his concerns to a supervisor, stating that he objected to the “captive random” drug testing which he believed to be illegal, and the “gestapo” standing outside the stall. Soon thereafter, O’Toole claimed work was diverted away from him, his production (and compensation) decreased, and he could not afford both his cancer medication and food. Ultimately, Aro and O’Toole were terminated several months thereafter (though allegedly not because of the drug test results).

LRLO maintained that the drug tests were triggered by allegations of “rampant drug use” at the Company and were “voluntary.” The Company maintained that no adverse actions were taken as a result of the drug tests.

Aro and O’Toole asserted claims for intentional infliction of emotional distress, among other things. After a bench trial, the trial judge awarded them approximately $15,000 each for noneconomic damages and $1 in exemplary damages. LRLO appealed.

The Court of Appeal affirmed the trial court ruling. First, the Court determined that the Workers’ Compensation exclusivity rule did not prevent Aro and O’Toole from recovering monetary damages for emotional distress. The Court reasoned that the random drug test administered in this case violated a fundamental right to privacy, which is protected by the California Constitution, and therefore the employer could not “hide behind the shield of workers’ compensation.” As debt collectors, Aro and O’Toole did not occupy “safety or security sensitive” positions and so the random drug test was “unreasonable and outrageous.”

The Court also concluded that LRLO’s conduct was sufficiently extreme and outrageous to constitute intentional infliction of emotional distress because: (1) there was no notice of the “random” unannounced drug tests; (2) there was no individualized suspicion of Aro and O’Toole; (3) when they objected to the testing, they were told that they would be suspended and the Company “would figure out” what to do with them; (4) they were required to stand in line and sign a consent form in the presence of other employees; (5) they were observed while providing urine specimens; (6) they felt threatened and intimidated because they had complained about unpaid overtime; and, (7) they were never given their drug test results. Both Aro and O’Toole testified that they suffered severe emotional distress, including “anguish, nervousness, anxiety, worry, humiliation and shame.”

California employers must be cognizant of the privacy issues implicated by “suspicion-less” workplace drug and alcohol tests. Random testing in California will not outweigh employees’ privacy interests where the employees to be tested are not “safety-sensitive.” Employers should review their drug testing policies to ensure that all drug and alcohol tests comply with all applicable laws.

Connecticut’s drug testing laws apply only to urinalysis drug tests and not to a drug test using hair specimens which led to an employee’s termination, a Connecticut trial court has held.  Schofield v. Loureiro Engineering Associates, Inc., 2015 Conn. Super. LEXIS 1262 (Super. Ct., D. Waterbury, Docket No. CV 146024702S, May 22, 2015).

Plaintiff Ronald Schofield began work for the Company on April 1, 2014. A little over two weeks later he was directed to take a drug test. (The decision is silent as to reason for the test.) The test relied on hair analysis. Schofield was not informed he would be subject to drug testing after he was employed. As a result of the drug testing, he was terminated.

Schofield brought suit against the Company alleging violations of the state drug testing laws. He also claimed, alternatively, that he was fired in violation of public policy.

The employer moved to strike each of Schofield’s claims based on violations of statutory provisions. The court agreed with the employer, based on “a plain reading of the statutes,” and held that “the drug testing statutes in question apply only to urinalysis testing and do not cover an employee who is subjected to other forms of drug testing.” The statute relied upon by Schofield in his first count, Connecticut General Statutes §31-51u, prohibits employers from determining an employee’s eligibility for various personnel actions (including adverse actions) solely on the basis of a positive drug test result unless the employer has given the employee a “urinalysis drug test,” and a positive result was confirmed in a second, independent “urinalysis drug test,” as specified in the statute. The statute relied on by Schofield in his second count, §31-51v, prohibits employers from requiring prospective employees from being required to submit to a “urinalysis drug test” unless the prospective employer is informed in writing at the time of application of the employer’s intent to conduct such a drug test, among other things.  Schofield’s third count relied on §31-51x, which provides that no employer may require an employee to submit to a “urinalysis drug test” unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol, as defined in the law. The court relied on a 2008 Superior Court decision that had reached the same conclusion as to §31-51x – specifically, that saliva testing, hair follicle testing, or any other valid non-urinalysis drug tests did not violate the statute. The court in Schofield found no difficulty in extending the rationale to §§31-51u and 31-51v.

The court, nevertheless, found “the logic of plaintiff’s position is readily understood and the seemingly irrational inconsistency which flows from disparate protections [of the statutes] made evident in this opinion are undeniable,” but concluded that any remedy lies with the legislature, not the courts. Having stricken plaintiff’s statutory claims, the court permitted plaintiff to plead a common-law claim of wrongful discharge in violation of public policy.

In a long-awaited and highly-anticipated decision, the Colorado Supreme Court unanimously upheld an employer’s termination of an employee who tested positive on a drug test due to his off-duty use of medical marijuana. Interpreting Colorado’s “lawful activities statute,” the Court held that the term “lawful” refers only to activities that are lawful under both state and federal law. Coats v. Dish Network, LLC, Case no. 13SC394 (June 15, 2015).

Brandon Coats was employed as a telephone customer service representative by Dish Network, LLC (“Dish”). In 2010, Coats received a medical marijuana license from the state to use marijuana to treat muscle spasms caused by his paraplegia. In May 2010, Coats tested positive for tetrahydrocannabinol (“THC”), a component of marijuana, during a random drug test. As a result, in June 2010, Dish fired Coats for violation of the company’s drug policy.

Subsequently, Coats filed suit, alleging wrongful termination under Colorado’s “lawful activities statute,” which generally prohibits employee discharge based on the employee’s engagement in “lawful activities” while the employee is off of the employer’s premises and during nonworking time. Coats argued that Dish terminated his employment for his off-duty use of medical marijuana, which was “lawful” under Colorado’s Medical Marijuana Amendment. The trial court, however, dismissed Coats’ claim, finding that the Medical Marijuana Amendment provided registered patients with an affirmative defense to criminal prosecution, but did not make their use of medical marijuana a “lawful activity” under the lawful activities law. On appeal, a split Court of Appeals affirmed the decision of the trial court, basing its decision on the illegality of marijuana under the federal Controlled Substances Act. Specifically, the Court of Appeals found that for a specific activity to be “lawful,” the activity must be permissible under both state and federal law. Because federal law prohibits the use of marijuana, Coats’ conduct could not be a “lawful activity” protected by the Colorado statute.

The Colorado Supreme Court agreed. Affirming the lower court’s opinion in a 6-0 ruling, the Court held that the term “lawful,” as used in the lawful activities statute, is not restricted in any way. As such, an activity that is unlawful under federal law, such as medical marijuana use, is not a “lawful” activity. The Court unanimously rejected Coats’ argument that the term “lawful” be read as limited only to those activities that are lawful under Colorado law, stating that it refused to “engraft a state law limitation onto the statutory language.” Because Coats’ use of medical marijuana was unlawful under federal law, his off-duty use of medical marijuana was not protected.

The Court also noted that although Congress recently passed a budget bill prohibiting the U.S. Department of Justice from using federal funds to prevent states from implementing medical marijuana laws, marijuana use still remains illegal under federal law.

While Colorado is viewed as one of the most liberal states in the country with regard to marijuana use, Colorado’s medical marijuana law provides that “nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” Even the state’s recreational marijuana statute provides that “nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.” Other states, however, have medical marijuana laws that expressly prohibit employment discrimination against medical marijuana users.

This case continues the trend of employer victories in medical marijuana cases. Employers have been successful in litigating medical marijuana cases in California, Colorado, Michigan, Montana, Oregon and Washington. Although public acceptance of medical marijuana is growing and more states continue to enact medical marijuana laws, the courts recognize that federal illegality is still a significant obstacle for marijuana users who wish to challenge their employer’s employment actions.