The Colorado Court of Appeals has ruled that the evidence presented by an employer at a claims hearing fell short of proving a sufficient basis for the denial of unemployment benefits to a discharged medical marijuana user who tested positive in an employer's drug screen.  Sosa v. Industrial Claim Appeals Office, Case No. 10CA1671, --- P.3d --- (Colo. App. July 7, 2011).  Although the outcome is disappointing for employers, the decision implies (while not saying so explicitly) that such benefits will be denied in similar situations if employers present some readily available evidence in the trials of such claims.

In Sosa, a registered medical marijuana user was required to undergo urinalysis by a certified laboratory when his supervisor observed behavior suggesting he might be under the influence of drugs.  When asked to undergo testing, he responded that he would likely test positive, as he was a medical marijuana user and had recently consumed marijuana for medicinal purposes.  His test results were positive, and under the employer's "zero tolerance" policy, his employment was terminated.

The Colorado statute most applicable to a drug testing/zero tolerance policy is C.R.S. § 8-73-108(5)(e)(IX.5), which disqualifies an unemployment insurance claimant who is dismissed pursuant to an employer's policy, for testing positive for controlled substances:

The presence in an individual's system, during working hours, of not medically prescribed controlled substances, . . . as evidenced by a drug or alcohol test administered pursuant to a . . . previously established, written drug or alcohol policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests. . . 

At the hearing, a Human Resources representative for the company testified about the chain of events and the employer's "zero tolerance" policy.  However, the employer did not present any evidence that the laboratory that conducted the claimant's test was certified or licensed.  This was deemed a crucial omission by the Court of Appeals. 

Sherman & Howard has represented this employer in the appeals following the hearing officer's award of benefits to the claimant.  (The Industrial Claims Appeals Office overturned the award, ruling for the employer, and the ICAO decision has now been reversed by the Court of Appeals.)  We have argued in the appeal that the employer's certification/licensure evidence omission should have no significance.  Our contention, which is supported by legal authority, is that evidence of a lab's certification or license is merely intended to ensure the accuracy of the drug test results, a matter that became moot when the claimant himself - when directed to go for testing - said he would likely test positive. 

The "silver lining" in this decision is that this employer's unfortunate mistake need not be replicated.  By presenting the missing evidence, C.R.S. 8-73-108(5)(e)(IX.5) should result in disqualifications in such situations.

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