Athlete Drug Testing: Coming to a Race Near You

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Reproduced by permission. ©2017 Colorado Bar Association 46 The Colorado Lawyer 19 (Jan. 2017). All rights reserved.

Amateur as well as professional athletes are subject to drug testing. This article describes what happens to athletes who provide positive samples to the U.S. Anti-Doping Agency.

Every weekend in our outdoor-oriented state, hundreds of people compete in individual and team sporting events, including running, cycling, nordic skiing, alpine skiing, swimming, and triathlon. Many participate simply to get some exercise while socializing with friends. Others are more competitive, working their way up the ranks to elite amateur status, like the road cyclist upgrading from a Category 3 to a Category 1 or 2 racing license. Some just want to be the big dog in a regional race.

The reality is that some participants will do more than just train hard for the next competition: they will try to boost performance by using banned substances. Such shortcuts can be tempting, especially when athletes suspect others are getting away with them. So it should come as no surprise to hear news that drug testing is taking place in local amateur competitions, in addition to elite competitions.

CEO Derek Bouchard-Hall of USA Cycling stated that he’s received “hundreds of emails saying ‘I don’t feel like I’m competing in a clean field.’”1 In fact, as recently as December 2015, two U.S. Anti-Doping Agency (USADA) doping control agents showed up unannounced at the door of a Category 3 amateur cyclist and acquired a urine sample that tested positive for a banned substance. This resulted in the cyclist’s suspension from competition. The cyclist was not on his way to the Olympics, but was merely competing in open regional and national competitions.2

Caley Fretz, senior editor of the American cycling publication VeloNews, estimates that at least 10% of Category 1, 2, and 3 amateurs have used performance-enhancing drugs.3 But the use of performance enhancing substances is not confined to amateur cyclists. Other athletes competing in regional events, such as the Boulder Peaks Triathlon, have also received sanctions for using prohibited substances.4 As the popularity of such events grows, it seems likely that the number of athletes seeking counsel to defend these types of charges will grow along with it.

This article describes the process that occurs when an athlete who has competed in a recent competition provides a USADA- required urine sample and tests positive for a prohibited substance. This article does not address other violations, such as administering a prohibited substance to another, being accused of using prohibited substances absent a positive urine sample, or refusing to dis- close one’s whereabouts to USADA doping control agents.

Athletes Must Agree to Testing

Athletes who compete in events more serious than the local fun run or ride, such as qualifying events for regional or national events, are usually members of federations such as USA Cycling, USA Triathlon, or USA Track and Field, which are U.S. National Governing Bodies (NGBs). As members of NGB federations, athletes must sign agreements that subject them to the World Anti-Doping Agency (WADA) Code5 and the USADA Protocol.6 The NGBs have committed themselves to be governed by the Protocol, and USADA has agreed to follow the WADA Code.

The USADA Protocol Preamble states, The provisions of the [USADA] Protocol for Olympic and Paralympic Movement Testing . . . are intended to implement the requirements of the World Anti-Doping Code (the Code) on a national basis within the United States. As required by the Code and the United States Olympic Committee (“USOC”) National Anti-Doping Policies (“NADP”), all [NGBs] must comply, in all respects, with this Protocol and shall be deemed to have incorporated the provisions of this Protocol into their rulebooks as if they had set them out in full therein.7

Thus, by being licensed to compete under the jurisdiction of an NGB, which organizes, insures, and licenses most serious events, athletes agree to be randomly tested.

Following the Sample

USADA doping control agents make unannounced requests for urine samples when an athlete places very high in a significant re- cent event or when someone gives USADA a statement that an athlete is suspected of using a prohibited substance. Athletes who are members of an NGB may also be randomly tested, even in the absence of probable cause or a reasonable belief for such test. If a test is refused without an acceptable reason, a suspension from further competition for a period of time is a foregone conclusion.

When the athlete provides a sample, it is divided into “A” and “B” samples. If the A sample tests positive for a prohibited sub- stance, USADA conducts an initial review to determine whether the athlete permissively used the substance under a therapeutic use exception (TUE). USADA will also review the matter to deter- mine whether there may have been a departure from the required laboratory testing procedures. If there is no TUE or departure from applicable standards, the athlete and the appropriate NGB are then informed of the positive A sample. This is referred to as an “adverse analytical finding without a therapeutic use exception.”8 At this stage of the proceedings, the athlete is given notice as to when the B sample will be opened and is informed of the right to be present with a representative, such as an attorney or laboratory expert.9

In certain cases, such as a when an adverse analytical finding is received for a prohibited substance, the athlete will also be advised that a provisional suspension will be imposed unless the athlete challenges it in writing within three business days after notice of the suspension.10 A mandatory provisional suspension may be challenged on grounds that the violation is likely to have involved a contaminated product.11 The athlete may also be offered the opportunity to accept a provisional suspension, which begins the term of suspension.12 If the athlete does not accept a voluntary provisional suspension and the case proceeds to conclusion, the suspension does not begin until the case is concluded. A provisional suspension may not be imposed unless the athlete is given either an opportunity for a provisional hearing or an opportunity for an expedited hearing.13 Expedited proceedings usually take place in situations where a competition will occur within 45 days and therefore before the matter can be resolved on the non-expedited track.14

The next stage of the proceeding is the B sample testing. As stated above, an athlete has the right to be present with a representative at the opening of the B sample. After the sample is tested, if the analysis confirms the positive A sample analysis, the results are provided to the athlete along with the B sample documentation package. The B sample results are then provided to an athlete’s NGB and the USOC, if applicable, and the athlete remains under a provisional suspension.15 Then the USADA results management process begins.

USADA Results Management Process

“The results management process is designed to protect the rights of clean athletes and preserve the integrity of competition [and] hold accountable those athletes looking to cheat through the use of dangerous, performance enhancing drugs[] while ensuring only those athletes guilty of anti-doping rule violations (ADRV) face sanctions.”16

USADA Has the Burden of Proof

When the case enters the results management phase, the proceedings move from an investigatory stage to a quasi-adjudicatory stage. Even after a positive B sample, USADA has the burden of proving a rule violation. The WADA Code states:

The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.17

The WADA Code also provides that the presence of a prohibited substance in an athlete’s body is a strict liability situation for the athlete.18

Anti-Doping Review Board Track

According to USADA Protocol, the next step in the results management process is the Anti-Doping Review Board Track.19 The review board comprises three to five persons—with at least one medical, one technical, and one legal expert—appointed by the USADA. The board is provided with the laboratory documentation from the A and B samples and all other documentation deemed appropriate by USADA.20 According to USADA Proto- col, the board will not be provided with the athlete’s name.21 How- ever, USADA informs the athlete that he has 10 days to provide the appointed review board members with any other documentation deemed necessary for a review.22 The Protocol provides that USADA has the power to shorten the 10-day period in its sole discretion.23 The review board also has the discretion to request additional information from USADA, the athlete, or the athlete’s representative during this time period.24

The USADA Protocol states that the review board process is not a “hearing.”25 Rather, the purpose of the review board is only to “consider whether there is sufficient evidence of an anti-doping rule violation to proceed to an arbitration hearing.”26 But the Protocol also states that “[a]ll inferences and conflicts in the evidence shall be resolved in favor of the case being [sic] proceeding to an arbitration hearing.”27 This reference makes the review board process seem very similar to a hearing to determine whether there is a level of reasonable belief akin to probable cause for the case to proceed.

Upon expiration of the designated time period, the review board is required to consider all written information submitted and then “make a signed, written recommendation to USADA whether or not there is sufficient evidence of an anti-doping rule violation to proceed to an arbitration hearing.”28 According to the Protocol, USADA will then report whether USADA considers the matter closed or that an alleged doping violation has occurred, in which case the matter will proceed to the adjudication process.29 The Protocol also states that the review board’s recommendation is not binding on USADA.30 If USADA does not close the matter and decides to proceed, the athlete and her representative, the NGB, the USOC, and any other interested organization with a right to appeal under the WADA Code will be notified of the specific charges and the sanction sought to be imposed.31

The Arbitration Hearing

The notice described above begins the 10-day time limit that the athlete and the athlete’s representative have to seek, in writing, a hearing to contest the sanction, or in the alternative, to accept the proposed sanction handed down by USADA.32 If the sanction is not accepted by the athlete or any organization entitled to be notified in the results management process, such as an NGB or the USOC, the matter enters the adjudication process, which consists of an arbitration hearing with a panel of American Arbitration Association (AAA) arbitrators who will hear the case according to the USADA Protocol supplemental AAA hearing rules (Supplementary Procedures).33

The Supplementary Procedures are similar to the AAA Commercial Arbitration Rules (Commercial Rules), and they control the proceedings whenever there is a conflict between the Supplementary Procedures and the Commercial Rules.34 There are differences between the Commercial Rules and the Supplementary Procedures because the Commercial Rules generally involve con- tract disputes between parties, while the Supplementary Procedures provide a procedure for adjudicating contested disputes involving alleged violations and sanctions.

Selection of Arbitrator(s). Unlike the Commercial Rules, the Supplementary Procedures do not allow the parties to designate a mutually acceptable arbitrator. Instead, the Supplementary Procedures require the AAA to send the names of all persons in the Arbitrator Pool to the parties,35 because the Pool is limited to Court of Arbitration for Sport (CAS) arbitrators, who are citizens of the United States. Under the Commercial Rules the Pool is larger, and only 10 names are sent to the parties from the National Roster.36

If the parties to a USADA dispute cannot agree on an arbitrator from the lists submitted, the procedure for the selection of one arbitrator is the same as set forth in the Commercial Rules:37 the parties must strike the names of unacceptable arbitrators on the list and rank, in order of preference, the names of the acceptable arbitrators. The AAA then “invites the acceptance” of a mutually acceptable arbitrator. The parties have five days to strike the unacceptable names under the Supplementary Rules, and 14 calendar days under the Commercial Rules.38

Unlike the Commercial Rules, the Supplementary Procedures allow any party to demand three arbitrators.39 The Commercial Rules provide for one arbitrator, unless the arbitration agreement provides for a specific number.40 If a demand for three arbitrators under the Supplementary Procedures is made, the USADA must designate one arbitrator from the Arbitrator Pool, and then the athlete has five days to designate another.41 The two arbitrators chosen then choose the third arbitrator from the remaining names in the Arbitrator Pool.42

The Hearing. Because of the urgency of upcoming competitions, the Supplementary Procedures provide that the hearing must be held within three months of appointment of the arbitrator, ab- sent good cause.43 The Commercial Rules do not have this requirement.

The conduct of USADA arbitration proceedings is similar to that under the Commercial Rules. Among the differences in the proceedings, the USADA must present evidence of its claim; the athlete must then present evidence to support her defense; and wit- nesses for both parties must submit to questions from the arbitrator and the adverse party.44 As stated above, conformance to legal rules of evidence is not required.45

The Supplementary Procedures do not have a specific provision that gives the arbitrator the power to allow for the presentation of evidence by alternative means such as videoconferencing or tele- phonic testimony. However, this power is implicit in both the Supplementary Procedures and Commercial Rules, which give arbitrators discretion to conduct proceedings with “a view to expediting the resolution of the dispute . . . ,”46 and the Supplementary Procedures state that the Commercial Rules apply as modified by the Supplementary Procedures.47

The Supplementary Procedures limit the power of the arbitrator to retain an expert to situations where the parties agree to retain one and agree to pay the associated costs.48 The Commercial Rules do not place such a limit on the arbitrator.

The Supplementary Procedures also provide that USADA hearings shall incorporate the mandatory Articles from the World Anti-Doping Code. “If the World Anti-Doping Code is silent on an issue, then the USADA Protocol, the USOC National Anti- Doping Policies, and the International Federation’s anti-doping rules shall apply as determined by the arbitrator.”49

Unlike the Commercial Rules, the Supplementary Procedures allow for witness evidence by declaration or affidavit. However, under the Supplementary Procedures the arbitrator may only give it such weight “as the arbitrator deems it entitled to after consideration of any objection made to its admission.”50

Closing of the Hearing. Closing the hearing is similar under both sets of rules, but the Supplementary Procedures give the par- ties slightly more leeway by allowing the parties an opportunity to demonstrate that the record is incomplete and that additional proof or witnesses “are pertinent and material to the controversy.”51 The Commercial Rules do not contain such a provision and specifically allow the arbitrator to declare the hearing closed if the arbitrator is satisfied that the record is complete.52 Like the Commercial Rules, the Supplementary Procedures allow for the filing of briefs and provide that the hearing is closed upon receipt of such briefs.53 Each set of rules also allows for hearings to be reopened at the arbitrator’s initiative or upon application of the parties, pro- vided both parties agree to an extension of time.54

Both sets of rules provide that the award must be made within 30 days from the date of the closing of the hearing.55

The Supplementary Procedures require that the award be delivered to the appropriate NGB, the USOC General Counsel’s office, and the athlete Ombudsman.56 Obviously there is no such requirement in the Commercial Rules.

The Supplemental Procedures provide that the award of arbitration is public.57

Post-Hearing Matters. The AAA panel will issue a “reasoned decision” that is deemed final for the purpose of appeal to the CAS.58 The final award by the arbitrators may be appealed to the CAS within 21 days of its issuance. If an award concerning the eligibility of an athlete is issued without reasons, an appeal may be taken within 30 days.59 While the CAS has administrative offices in Lausanne, Switzerland, appeals from panel decisions are heard by the CAS in the United States.60

Expedited Track

The results management process can be expedited if an athlete has an event that is a protected competition61 or another significant event scheduled within 45 days and has refused to accept a provisional suspension, and the USADA concludes that the case might not be concluded on the normal Anti-Doping Review Board Track prior to the competition.62 USADA has the power to eliminate the review board process and shorten the hearing time frames to make a timely determination,63 and to meet the hearing deadline, the athlete’s B sample will be tested at the earliest possible time.64 Regardless of the status of that analysis, the athlete can accept a provisional suspension at any time during the pendency of the expedited track procedure.65 This does not appear to be an admission of guilt, but only a procedural device to place the matter back on the normal Anti-Doping Review Board Track.66 When the case is on the expedited track, the athlete will be deemed to have requested arbitration.67

When the AAA receives notice of an expedited hearing from USADA, it will immediately form a panel of arbitrators under the AAA’s expedited procedure.68 The panel will then complete and close the hearing and issue its award within the time period set forth by USADA so that the matter can be resolved prior to the protected competition, or if the competition is not imminent, within 21 days from the formation of the panel.69

Appeals

When there is an adverse finding against the athlete for use of a substance on the prohibited list without a TUE, or if the athlete wishes to contest the severity of the penalty, the athlete has the right to appeal to the CAS.70 USADA also has the right to appeal.71 An appeal must be filed within 21 days with the CAS ad- ministrator.72 The CAS has its own appellate arbitration procedure that is beyond the scope of this article.73

Instructive Decisions

Arbitrators should have a working knowledge of the salient AAA and CAS decisions. Because the presence of a prohibited substance in an athlete’s body is a strict liability situation, cases dealing with the reduction in the amount of time of a suspension are frequently helpful because degree of fault is an issue. A few instructive cases are highlighted below.

USADA v. Asfaw.74 Asfaw, an American marathoner vying to make the U.S. Olympic team, tested positive (an adverse analytical finding) for the presence of ephedrine after a race in Peru. The presence of ephedrine is permissible in small amounts, but the amount present in Asfaw’s sample was above the permissible level. After receiving the results of the A sample, Asfaw admitted that she had taken the substance, did not request testing of a B sample, and accepted a provisional suspension. However, she argued that her period of ineligibility should be minimal because she inadvertently took ephedrine, rather than Benadryl, for her allergies. She stated that she was given ephedrine by acquaintances while in a restaurant in Japan, and while traveling, she put both the Benadryl and ephedrine in one bottle. After the Review Board process, USADA advised Asfaw that she could accept a two-year period of ineligibility or contest the sanction by requesting a hearing before the AAA. She requested a hearing, and the sanction was upheld.

Asfaw illustrates the format that AAA arbitration panels under USADA Supplementary Procedures follow in setting forth a decision and award. It also sets forth the principal guidelines for the elimination or reduction of the period of ineligibility for particular substances under specific circumstances.75 The guidelines dis- cussed and applied in Asfaw were derived by the AAA Panel from an appeal to the CAS of a period of ineligibility imposed by the International Tennis Federation (ITF) in Cilic v. ITF (which was decided before January 2015 changes to the WADA Code).76

Cilic v. ITF. Cilic, a high-level tennis player competing in the Rolex Masters in Monte Carlo, was found to have a prohibited substance, nicethamide, a central nervous system stimulant, in his system. Like Asfaw, he claimed to have taken it mistakenly. Cilic testified that while in Monte Carlo, his mother purchased a glucose supplement for him that contained nicethamide, but he did not correctly read the pharmaceutical label, which was in French. In Cilic, the CAS arbitration panel held that in cases where the prohibited substance was not intended to enhance performance, the period of ineligibility must be determined within a specified range of three sanctions: a significant or considerable degree of fault (16 to 24 months suspension); a normal degree of fault (eight to 16 months’ suspension); and a light degree of fault (zero to eight months’ suspension). Ultimately the CAS reduced the suspension imposed by the ITF from nine months to four months.77

USADA v. Lea.78 Lea, which was decided after the new WADA Code became effective in January 2015, involved an experienced Olympic cyclist who had competed primarily in track events for about 10 years and was competing to participate on the 2016 Olympic Team. Lea had an adverse analytical finding for having oxycodone, a banned substance, in his system during competition. He accepted the finding, waived his right to have the B sample tested, and accepted a provisional suspension. USADA and the International Cycling Federation (UCI) claimed that Lea should be declared ineligible for four years for using a performance-enhancing substance during competition. Lea’s position was that he had taken a permissible out-of-competition substance as a sleep aid and that it did not create a competitive advantage or mask an injury, and therefore the sanction was too severe. Because Lea, USADA, and UCI did not agree on the sanction, the matter was referred to the AAA for arbitration. The panel first determined that, contrary Article 10.2.1, which provides for a four-year suspension where the rule violation was intentional and concerned a specified substance. The Panel found that Lea was negligent, and under the Cilic guidelines, he was culpable for “significant fault,” and imposed a 16-month suspension. Lea appealed to the CAS.

The CAS reduced the period of ineligibility to six months after a lengthy Cilic analysis. It found that Lea had taken a permissible out-of-competition substance for a long time without positive results in competition, and that he was merely too close to the permissible 12-hour window for taking the medication prior to the beginning of a cycling competition. As an interesting aside, the CAS noted that under its own rules it had the power to perform a de novo review of both the facts and the law in these types of cases, even though it did not review the facts of Lea’s case because both parties had agreed on them.79 The CAS found that Lea was in a category of “light degree of fault” because he did not take an out- of-competition prohibited substance but was merely negligent in taking the substance too soon before the next day’s competition.

The panel explained,

This Panel agrees with the CAS jurisprudence that “although consistency of sanctions is a virtue, correctness remains a higher one: otherwise unduly lenient (or, indeed, unduly severe) sanctions may set a wrong benchmark inimical to the interests of sport.” [Citations omitted.] In our view, a six month period of ineligibility for Appellant achieves both objectives because it is a fair and proportionate sanction under Cilic’s guidelines as well as the pre-Cilic sanctioning principles set forth in Kendrick.80 These three cases demonstrate that athletes often admit to the existence of a prohibited substance after testing positive and argue over the degree of fault rather than guilt or innocence. The cases also illustrate the well-defined procedure created by the CAS and adopted by the AAA to make the degree-of-fault determination.

Conclusion

The public demand for clean sport is rising among both competitors and spectators. The entire Russian track and field team, except for one person, was banned from the 2016 Rio Summer Olympics, and the Kenyan track and field team program is under the scrutiny of WADA. The recent victories of the Russian Olympic competitors at the Sochi Winter Games also are being questioned because of doping violations and gross procedural violations of the Russian Anti-Doping Agency. Signatory nations to the WADA Code (all nations that participate in the Olympic Movement) have signed on to its fundamental rationale, which states that the essence of sport is “the pursuit of human excellence through the dedicated perfection of each person’s natural talents. It is how we play true.”81

Testing for banned substances and subsequent prosecutions have already occurred locally, and will increase as public demand for clean sport trickles down to local levels. Those involved with doping offenses are entitled to fair hearings and competent representation, which requires an understanding of how the WADA Code and the USADA Protocol work.

The author would like to thank Sarah Hartley of Bryan Cave LLP for her assistance in writing this article.

Any errors are solely those of the author.

 

Notes

  1. Dreir, “Doping Cops Take Aim at Amateur Athletes,” Wall Street Journal (Dec. 23, 2015), wsj.com/articles/doping-cops-take-aim-at- amateur-athletes-1450913174.
  2. Fretz, “Totally Amateur,” VeloNews ( June 2016).
  3. Id.
  4. USADA news release re: Mark Fretta (Nov. 9, 2012), usada. org/u-s-triathlon-athlete-fretta-receives-sanctions-for-anti-doping-rule- violation.
  5. USADA Protocol ¶ 3, usada.org/wp-content/uploads/USADA_protocol.pdf. For the WADA Code, see www.usada.org/wpcontent/uploads/wada-2015-world-anti-doping-code.pdf.
  6. USADA Protocol ¶ 3.
  7. USADA Protocol
  8. USADA Protocol ¶ b.
  9. Id.
  10. USADA Protocol ¶
  11. WADA Code Article 9.1.
  12. USADA Protocol ¶
  13. Id.
  14. USADA Protocol ¶
  15. USADA Protocol ¶ c.
  16. usada.org/testing/results.
  17. WADA Code 3.1.
  18. WADA Code 2.1.1.
  19. USADA Protocol ¶ a.
  20. USADA Protocol ¶ b.
  21. USADA Protocol ¶ d.ii.
  22. USADA Protocol ¶ d.iii.
  23. Id.
  24. USADA Protocol ¶ d.v.
  25. USADA Protocol ¶ d.vi.
  26. Id.
  27. Id.
  28. USADA Protocol ¶ d.7.
  29. USADA Protocol ¶ f.
  30. USADA Protocol ¶ e.
  31. USADA Protocol ¶ f.
  32. USADA Protocol¶¶ g. and 13.i.
  33. USADA Protocol Annex D, AAA Supplementary
  34. USADA Protocol Annex D, AAA Supplementary Procedures R-1.
  35. USADA Protocol Annex D, AAA Supplementary Procedures R-11.
  36. AAA Commercial Arbitration Rules R-12(a), adr.org/aaa/ ShowProperty?nodeId=/UCM/ADRSTG_004103&revision=latest released.
  37. USADA Protocol Annex D, AAA Supplementary Procedures R-ii.
  38. ; AAA Commercial Arbitration Rules R-12(b).
  39. USADA Protocol Annex D, AAA Supplementary Procedures R-b.
  40. AAA Commercial Arbitration Rules R-16(a).
  41. USADA Protocol Annex D, AAA Supplementary Procedures R-d.i.
  42. USADA Protocol Annex D, AAA Supplementary Procedures R-d.ii.
  43. USADA Protocol Annex D, AAA Supplementary Procedures R-
  44. USADA Protocol Annex D, AAA Supplementary Procedures R-
  45. USADA Protocol Annex D, AAA Supplementary Procedures R-
  46. USADA Protocol Annex D, AAA Supplementary Procedures R-b; AAA Commercial Arbitration Rules R-32(b).
  47. USADA Protocol Annex D, AAA Supplementary Procedures R-1. A telephonic hearing was recently conducted in USADA Raquira, AAA Case No. 01-16-0000-7103, Award ¶ 4 (Aug. 17, 2016), www.usada.org/ wp-content/uploads/2016_08_17-AAA-Award-Raquira.pdf.
  48. USADA Protocol Annex D, AAA Supplementary Procedures R-28(b).
  49. USADA Protocol Annex D, AAA Supplementary Procedures R-28(f ).
  50. USADA Protocol Annex D, AAA Supplementary Procedures R-a.
  51. USADA Protocol Annex D, AAA Supplementary Procedures R-
  52. AAA Commercial Arbitration Rules R-39(a).
  53. USADA Protocol Annex D, AAA Supplementary Procedures R-
  54. USADA Protocol Annex D, AAA Supplementary Procedures R-33 and AAA Commercial Arbitration Rules R-40.
  55. USADA Protocol Annex D, AAA Supplementary Procedures R-38 and AAA Commercial Arbitration Rules R-45.
  56. USADA Protocol Annex D, AAA Supplementary Procedures R-
  57. Id.
  58. USADA Protocol b.
  60. USADA Protocol Annex D, AAA Supplementary Procedures R-
  61. Generally, a protected competition is an event sanctioned by an See USADA Protocol ¶ 12, which refers to the definition of a protected competition in the Bylaws of the United States Olympic Commit- tee Section 1.3(w)(1) and (2).
  62. USADA Protocol ¶
  63. Id.
  64. USADA Protocol ¶ a.
  65. USADA Protocol ¶ e.
  66. Id.
  67. USADA Protocol ¶ b.
  68. USADA Protocol ¶ c.
  69. USADA Protocol ¶ d.
  70. USADA Protocol ¶ b.
  71. Id.
  72. Id.
  73. Id.
  74. USADA v. Asfew, AAA Case No. 01-14-001-4332 (Mar. 9, 2015), www.usada.org/wp-content/uploads/3-10-15-Reasoned-Decision-and- Award.pdf.
  75. It is important to note that the panel cited the 2009 WADA Those articles were revised, effective January 1, 2015. The same factors still apply in deciding the period of ineligibility.
  76. Cilic ITF, CAS 2013/A/3327 (Oct. 25, 2013), www.morgansl. com/pdfs/Marin_Cilic_v_ITF.pdf.
  77. Id. at
  78. USADA v. Lea, AAA Case No. 01-15-00005-6647 ( Jan. 5, 2016), www.usada.org/wp-content/uploads/AAA-Decision-Lea-Award-01-05- 2016.pdf. (See also Lea v. USADA, CAS 2016/A/4371 (May 4, 2016), www.usada.org/wp-content/uploads/2016-05-04-CAS-Award-Robert- Lea.pdf.)
  79. Id. at
  80. Id. at
  81. WADA Code, Purpose, Scope and Organization of the World Anti-Doping Program and the n

 

Current State of Marijuana and Employment Issues: A Moving Target
/in , , /by

Current State of Marijuana and Employment Issues: A Moving Target

by Cathy A. Klein

Reprinted from Colorado Trial Lawyers Association/Trial Talk – June/July 2015

 

“Just can’t turn a no into a yes without a maybe in between.”

President Francis Underwood, “House of Cards”

 

Marijuana law in Colorado and throughout the country is an ever changing, seemingly moving target and needs to be checked every day and counsel must keep abreast of the rapid developments. An underlying reason stems from the fact marijuana remains illegal under federal and most state laws, and there are no reliable tests to determine cur- rent impairment. The rapidly emerging marijuana market embraces nearly every aspect of the law, particularly employment law.

The principle marijuana issues in employment arise from testing, termination and discipline, Americans with Disabilities Act, workers compensation and unemployment benefits.

Policies and Drug Testing for Marijuana: An Overview

Workplace drug policies are essential to establish clarity of expectations for both the employee and employer.

Appropriate employer policies should include alcohol and drug rules, focus on safety in the workplace, account for prohibited use under federal law, specify types of tests, whether notice is provided prior to testing, consequences of a violation of the policy, confidentiality, uniformity of enforcement and non-discriminatory testing. Some examples of situations commonly subject to testing are pre- employment, random, reasonable suspicion, return to duty, post-accident and/or follow-up. If there is a new policy, or change in existing policy, the employer should provide at least thirty days’ notice and copies, with the employees’ acknowledgment of receipt of the policy. Furthermore, employers should notify job applicants of the policy and any testing, preferably in writing.

The use of marijuana in the employment context usually occurs in three ways: on the clock use, off-the-clock use but under the influence at work and off-the-clock use and tests positive at work, but not under the influence. This last use is currently a major issue in Colorado employment law. The first two situations are clearly problematic for employees.

Current Marijuana Testing

Tests for other drugs that are water-soluble and, thus, quickly eliminated from the body, clear the body’s system rapidly, often times within a few hours after ingestion. The drugs are not detected after clearing the body. However, the fat-soluble tetrahydrocannaboids (THC) component in mari- juana that causes a euphoria, remains in the system much longer. Thus, testing for THC will likely produce a positive drug test even though the person has not recently experienced marijuana exposure and is not currently impaired. There are different types of marijuana drug tests. Hydroxy THC (H-THC) is an active metabolite that may show up initially and may indicate that a person has partaken in marijuana over the past few hours. On the other hand, Carboxy-THC (C-THC) can remain in the system for thirty days or more. It is an inactive metabolite and does not cause intoxication. It may test positive over a period of time. However, there is still no reliable test for current impairment.

Marijuana Drug Detection Time Chart by Medical Disposables, Inc.1

1 time only 5-8 days
2-4 times per month 11-18 days
2-4 times per week 23-24 days
5-6 times per week 33-48 days
Daily Usage 49-90 days
Hair Drug Test Up to 90 days, some states 120 days
Saliva Drug Test 1-10 days
Blood Drug Test 2 days
Fingernail Drug Test 90 days
Alcohol Drug Test 3-5 days via Ethyl Gluconoride (EGT) or 10-12 hours via traditional method

 

Another means of testing for marijuana is via the hair. Blood nourishes the hair as it grows. If marijuana is in the blood, it will reach the hair and embed in the hair shaft. It takes about a week after drug use for the drug affected hair to grow above the scalp. Accuracy requires at least 100-120 strands of hair, cut as closely to the scalp as possible and must be at least a half-inch long. This provides a proximate thirty-day history since hair grows about a half-inch per month. One and a half inches of hair gives a ninety-day drug history.

Testing Litigation and Resources

Another area of law certain to change as a result of marijuana legalization is testing.

The conflict in types of testing was addressed in an Arizona DUI case in which the driver had C-THC metabolites in his system, but no H-THC, thus showing the driver was most likely not intoxicated. The trial court dismissed the case based on evidence showing the man was not intoxicated, and, therefore, not guilty of a DUI. The appellate court reversed the dismissal under the theory the Arizona legislature intended strict liability against users of illegal drugs. The Arizona Supreme Court overturned the appeals court and determined that drivers must have the active metabolites (H-THC) in their systems to prove DUI. The dissent argued that the law should punish marijuana patients regardless of whether or not they are impaired.2

Presently, there are a few federal agency traffic position statements that may prove to be helpful in representing an employee with a positive drug test for marijuana.

The National Highway Traffic Safety Administration (NHTSA) states testing for marijuana is not reliable to determine current impairment. The NHTSA re- leased recent research in November 2014 indicating that per se DUI limits for drugs, including marijuana, is inappropriate because knowing the person tested positive for marijuana does not indicate that the person was impaired at the time. The inference is if the drug test is not reliable, then other factors, such as behavior, are indicators that can support the drug test. Also, according to the NHTSA fact sheet on marijuana for blood and urine testing it is difficult to establish a relationship between the person’s THC level and performance impairing effects.3

An important distinction to make when evaluating impaired driving data is the mere presence of a drug in a person’s system, as compared to the person being impaired by a drug in his/her system. …Date identifying a driver as “drug positive” indicates only that the drug was in her/her system at the time of the crash. It does not indicate that a person was impaired by the drug (Compton & Berning, 2009).4 The presence of some drugs in the body can be detected long after any impairment. For example, traces of cannabinoids (marijuana) can be detected long after any impairment. For example, traces of cannabinoids (marijuana) can be detected in blood samples long after use. Thus, knowing that the driver tested positive for cannabinoids does not necessarily indicate that the person was impaired by the drugs at the time of the crash.” (Emphasis added.)5

“Current knowledge about the effects of drugs other than alcohol on driving performance is insufficient to make judgments about connections between drug use, driving performance, and crash risk.” 6   “Caution should be exercised in assuming that drug presence implies driver impairment. Drug tests do not necessarily indicate current impairment.

Also, in some cases, drug presence can be detected for a period of days or weeks after ingestion.”7

Additionally, the United States Government Accountability Office Report to Congressional Committees of 2015 concludes that drug testing for marijuana is not reliable to test for current impairment. “It is difficult to establish a relationship between a per- son’s THC blood or plasma concentration and performance impairing effects.”8 “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations.”9

Expert Testimony

In addition, the services of an expert may be useful to disprove impairment. The expert may be a physician, prefer- ably a toxicologist, or another qualified professional with the education, back- ground and experience to serve as an expert on the issue. There are several issues for the expert to consider. Marijuana impairment is not the same as alcohol, thus, detection is not the same and cannot be correlated. Marijuana has many psychoactive components – most notably is THC – and numerous non-psychoactive components that do not cause intoxication. THC is immediately taken up by fat cells and is released slowly over time which is generally not a contributor to intoxication, but is a reason why it can be detected so long after consumption.

There is difficulty in accurately establishing an absolute correlation between some measured value and intoxication. Behavioral tests may or may not have been performed to compliment the drug test. Are the behavioral tests reliable or subjective? Some states have instituted legal limits of THC, which is not based on intoxication or impairment, but a zero tolerance drug policy.

Can a Colorado Employee be Terminated for Using Medical Marijuana in Compliance with Colo. Const. Art XVIII, §14 Off Premises and Off Hours?

The sentinel case currently awaiting decision by the Colorado Supreme Court on medical marijuana and employee rights is Coats v. Dish Network, LLC. Mr. Coats is a wheelchair-bound quadriplegic victim of an automobile crash. He has a valid medical marijuana license under Colo. Const. Art XVIII,

  • 14. He was employed by Dish Net- work, LLC (Dish) for approximately three years handling telephone calls. He had good employee evaluations and no disciplinary actions. He used marijuana for tremors and to help relax at night so he could sleep. He never used marijuana on Dish premises. He never used marijuana during work hours. He was never under the influence of marijuana at work. Mr. Coats was fired from his position after testing positive for marijuana which Dish claims was a violation of its drug policy. Since the case was dismissed at the trial court level, there was very little discovery. There was no other reason given by Dish for his termination.10

Mr. Coats brought a wrongful termination claim in Arapahoe County District Court alleging violation of Colorado Lawful Activities Statute,

C.R.S. §24-34-402.5 which states “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer and during non-working hours ….” His complaint was dismissed for failure to state a claim and Dish’s motion for attorneys’ fees in the amount of about $44,000.00 was granted.11

Mr. Coats appealed both rulings, and the court of appeals announced its decision on April 25, 2013. The court of appeals determined Mr. Coats’ state- licensed use of marijuana was not “lawful activity within the meaning of the Lawful Activities Statute.”12

The next question before the court of appeals was whether a federally prohibited but state-licensed medical marijuana use is a “lawful activity” under C.R.S. §24-34-402.5. The court concluded that such activity is not “lawful activity.” The Lawful Activity Statute is an employment discrimination provision of the Colorado Civil Rights Act which prohibits an employer from discharging an employee for “engaging in any lawful activity off premises of the employer during non- working hours.” The court disagreed with Mr. Coats’ argument on the plain language of the law that his use was a “lawful activity” because the state’s statutory term refers only to state and not federal law, and finding no legislative intent to extend employees’ protection to those engaged in activity that violate federal law.13

The court of appeals determined

  • 24-34-402.5 is not an invasion of privacy tort and does not exhibit sufficient general tort characteristics. Thus, the court reversed the trial court’s decision granting attorneys’ fees to Dish under C.R.S. §13-17-201.14

Mr. Coats pled the single Lawful Activity Statute claim which is an employment discrimination provision of Colorado Civil Rights Act. Mr.

Coats’ complaint did not refer to or imply a tort claim. The only damages specifically requested were back pay and benefits, which are the sole remedies authorized by Lawful Activities Statute. The court rejected Dish’s argument that the Lawful Activity Statute was analogous to a claim for intrusion upon seclusion and an unreasonable disclosure of private facts. The court continued its reasoning in determining that in contrast to the broad compensation for pain and suffering, harm to reputation, emotion distress and other injuries which are often available in a tort claim, the Lawful Activity Statute authorizes only back pay and benefits that would have been due absent the discriminatory termination. Thus, Dish’s request for attorneys’ fees under §13-17-201 on appeal was rejected.15

Judge Webb wrote a compelling dissent in Coats arguing that “lawful activity” under the Lawful Activity Statute should be measured by state law, and the use of medical marijuana is permitted under the Colorado Constitution, thus, making it a lawful activity under Colorado law. Judge Webb argued that Colorado criminal law is not coterminous with federal criminal law. The Lawful Activity Statute does not define “lawful activity,” thus, making the statute ambiguous because the phrase could incorporate state law, federal law or both. Judge Webb also argued that the court’s reliance on the dictionary definition of “lawful” was misguided, cautioning that dictionary definitions must be used as sources of statutory meaning only with great caution. For these reasons, Judge Webb looked at “the spirit of the statute and not simply the letter of the law.” In the case of the Lawful Activities Statute, the legislative discussion of off-duty conduct reflected a desire to protect employees’ autonomy in their off-the-job activities, such as smoking and eating patterns that led to obesity, as opposed to empowering employers to discharge employees. Judge Webb furthermore agreed with the dissenting opinion in Beinor v.

Industrial Claim Appeals Office16 where it was argued the Medical Marijuana Act establishes a right to possess and use medical marijuana. Judge Webb further argued that to be lawful under the off-duty conduct statute, the conduct may not rise to the level of a constitutional right, and the use of marijuana in compliance with state law is “lawful” under the Lawful Activity Statute.17

The [Medical Marijuana Act] MMA states: “The patient’s medical use of marijuana, within the following limits, is lawful.” Colo. Const. art. XVII, §14(4)(a).

The so-called Blue Book refers MMA in terms of “legally possesses” and “legalize the medical use of.” Colorado Legislative Council, Research Pub. No.

475-0, An Analysis of 2000 Ballot Proposals.

Enabling legislation states that the MMA “sets forth the lawful limits on the medical use of marijuana.” §18-18-406.3(1)(f),

C.R.S. 2012.

A division of the court of appeals has recognized under §18-18-4- 6(1), C.R.S. “A patient’s medical use of marijuana within the limits set forth in the Amendment is deemed ‘lawful’ under Subsection (4)(a) of the Amendment.” People v. Watkins, 2012 COA 15,

, ¶23, 282 P 3d. 500.18

Judge Webb would reverse the dis- missal of Mr. Coats’ off-duty conduct claim, and concurs with the majority’s conclusion that Dish is not entitled to recover attorney fees, either at the trial court level or on appeal.19

Note: Shortly before publication, the Colorado Supreme Court affirmed lower courts’ rulings that businesses can fire employees for the off-duty use of medical marijuana. We will publish an article about the ruling in the next issue.

American with Disabilities Act

Another compelling issue in employment matters and marijuana is the application of the Americans with Disabilities Act (ADA).20

To establish a prima facie claim of discrimination under the ADA, a dis- charged employee must prove 1) that he has a disability, 2) that he was qualified for the job from which he was discharged, and 3) that his discharge was the result of his disability.21 In cases involving medical marijuana use, the question arises whether or not an employee has a disability under the ADA.

In Zenor v. El Paso Healthcare system, Ltd., the Fifth Circuit addressed whether the ADA excludes persons who are currently using illegal drugs from its protection. Mr. Zenor was an employee who was addicted to cocaine and unable to report to work one evening because of his addiction. He enrolled himself in the drug rehabilitation program offered through his employer. Because Mr. Zenor’s job required access to pharmaceutical cocaine, Mr. Zenor’s employment was terminated after he returned from drug rehabilitation. Mr. Zenor sued on a variety of claims, including violation of the ADA. According to the Zenor court, the ADA specifically exempts current illegal drug users from being considered “qualified individuals.” The court further determined that “federal law does not proscribe an employer’s firing someone who currently uses illegal drugs, regardless of whether or not that drug use could otherwise be considered a disability.” Noting that Texas law has a strong presumption in favor of at- will employment, the court held that the creation of a drug rehabilitation program did not create an enforceable contract granting rights beyond that of at-will employment. For contractual rights to be created, a policy must “specifically and expressly limit the employer’s ability to terminate the employee.”22 “The policy must contain an explicit contractual term altering the at-will relationship, and must alter that relationship in a meaningful and special way.”23

Since marijuana use is still considered illegal by the federal government, it seems clear that marijuana users, even those registered through a state’s medical marijuana program may be excluded from ADA protection under 42 U.S.C.

  • 12114(a). This issue has not yet been decided by the courts and may ultimately be decided based on a choice of competing interpretations of the ADA.

Under a “competing federal interests” theory, the federal government’s current position to keep marijuana illegal would compete with the ADA’s right to provide relief for a person “handicapped” by diseases such as cancer and glaucoma that are two conditions for which medical marijuana is often recommended. While marijuana proponents could point to federal acceptance of known pain relievers such as morphine, the federal government would likely counter by asserting that these “handicapped” individuals could properly be treated with Marinol, which is a legal synthetic marijuana. Given these compelling arguments on both sides, it seems likely that any court decision will be appealed and the United States Supreme Court may ultimately be asked to decide whether medical marijuana use is permitted under the ADA.

Federal case law thus far has sup- ported an employer’s right to discharge an employee for marijuana use, even if that employee were disabled according to the ADA.24 The ADA excludes from its protection “any employee or application who is currently engaging in the illegal use of drugs.”25 The ADA recognizes an employer’s right to test for drug use and to prohibit illegal drug use in the workplace.26 The federal government’s refusal to declassify marijuana as a Schedule I drug makes it likely that ADA protection will not be afforded to employees terminated for medical marijuana use.

Can a Colorado Injured Worker Receive Workers’ Compensation Benefits for Use of Medical Marijuana?

Doctor’s order for back pain: “Smoke two joints and call me in the morning.”

This very real scenario will most assuredly drive workers compensation carriers crazy. “Do they have to pay for it?” “If so, how much do joints cost?” “Does this constitute medical marijuana?” “How do they pay?” “What if the worker goes to work high?” “Do they have any liability?” “Can the worker get fired for a positive drug test for marijuana?” Because so many states are approving medical marijuana and guidelines vary from state to state and are so vague, it has the potential for becoming a very big deal. The lack of approval from the

U.S. Food and Drug Administration and current federal law banning marijuana could be used as an argument for carriers not to pay for medical marijuana as a treatment for injured workers. Often pharmacy benefit managers have workers compensation prescription formularies that typically exclude marijuana as a permissible medication. However, carriers can still agree to pay for medical marijuana.

On the other side, federal law may not be enough to stop claims for payment for medical marijuana from coming into the workers compensation system. There are also concerns that the medication could impair injured workers while increasing compensation costs and lengthening the time period within which workers can re- turn to work. There is currently no determination that the increasingly acceptance of marijuana as a recognized treatment will increase the likelihood of its payment in the workers compensation arena. Furthermore, medical marijuana can be used in most jurisdictions under the radar of insurers, third-party administrators and pharmacy benefit managers. Workers compensation benefit systems vary from state to state, and many general employment and drug enforcement laws arise under state statutes.

Other questions: “Is the injury compensable if the claimant’s post-accident drug test is positive for marijuana?” Some states adopt the theory that marijuana is a dangerous controlled substance with no medical benefit under federal law, so it is illegal regardless of state law. Thus, if the employer can prove marijuana is the cause of the injury, most likely it is not a compensable claim. Whereas, other states adopt the theory that if marijuana is a legal medication under state law and properly prescribed or recommended by a licensed health care provider, the claimant is entitled to take it even if it was a cause of the injury, and thus, the injury is compensable. This is followed by the pervasive question-even though there was a positive drug test, how can it be determined if the claimant was impaired at the time of the accident?

Since impairment cannot currently be determined by a test and marijuana remains in the system long after it was ingested, how is it determined if marijuana was a cause of the accident?

However, even if the claim is compensable, the claimant can still be terminated/disciplined by the employer for a positive test under current Colorado law.27

A related question: “What if the injured worker with a compensable injury tests positive for marijuana, but it did not cause the injury?” The answer turns on the precise language of the law. The Oklahoma Supreme Court held that the state’s workers compensation statutes allowed employees who test positive for medical marijuana to demonstrate that such use was not the cause of the injury. If proven not to be the cause of the injury then obtaining benefits for an otherwise compensable injury would be allowed.28

“Does the workers’ compensation carrier have to pay for medical marijuana prescribed for a claimant in a state where it is legal?” As of this time, and subject to change, generally medical marijuana in most states is not a compensable benefit. No appellate court or appellate workers’ compensation appeal board has yet upheld a worker’s right to be reimbursed for the cost of medically prescribed marijuana in the state the claim was made. Language in Colorado law is typical of that in other states, including Oregon, Michigan, Montana and Vermont, which provides there is nothing in the law that requires a government medical assistance program or private health insurer to reimburse a person for the costs associated with medical marijuana. “No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana.”29

Whereas, Washington law provides for insurers to enact coverage or non- coverage criteria for payment or nonpayment in its sole discretion. “Nothing in this chapter establishes a right of care as a covered benefit or requires any state purchased health care as defined by RCW 41.05.022 or other health carrier or health plan as defined in Title 48 RCW to be liable for any claim for reimbursement for the medical use of cannabis. Such entities may enact coverage or non- coverage criteria or related policies for payment or non-payment of medical cannabis in their sole discretion.”30 However, New Mexico law provides that the workers compensation system is required to pay for an employee’s medical marijuana in a workers’ compensation case.31

Cases run the gamut. However, at this point most workers compensation panels or judges asked to determine if payers have to pay for medical marijuana have determined they do not have to pay. Issues that are being addressed are the lack of basis of paying for medical marijuana, no formal way to pay for it like there is for other medications, no reference to state fee schedules for re- imbursement, lack of standard billing practices, Medicare set-aside, to name a few.

In California, a workers’ compensation judge ordered reimbursement to a claimant for medical marijuana. How- ever, the Workers Compensation Appeals Board returned it to the trial level with instructions to consider a state law pro- vision in the Health and Safety Code Sec. 11362.785(d) stating “Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”32

In New Mexico, Mr. Maez suffered two back injuries in February and March, 2011 while working at Riley Industrial Services, Inc., insured by Chartis, Inc. Mr. Maez received temporary disability workers compensation benefits, and a workers compensation judge determined he was entitled to ongoing reasonable and necessary medical care. Mr. Maez’s physician authorized his use of medical marijuana after other treatments failed because, in part, Mr. Maez already tested positive for marijuana and would use it anyway. Thus, the workers compensation judge ruled that in this case medical marijuana was not reasonable and necessary because the physician did not “prescribe” it. However, the three judge panel for the New Mexico Court of Appeals unanimously reversed the decision January 13, 2015, finding that New Mexico’s compassionate use law allows Mr.

Maez’s medical marijuana use, and it is treated as a prescription for workers compensation. The court also relied on New Mexico law that qualifies medical marijuana as a “functional equivalent of a prescription” since it is not a prescription drug in the state. The court also determined that medical marijuana was a reasonable and necessary treatment since other treatment modalities failed to alleviate Mr. Maez’s back pain, and he was authorized by a physician to use it.33

In Iowa, a deputy workers compensation commissioner allowed an employee who was living in Oregon to recover for an Iowa workers compensation claim for medical marijuana in Oregon under Oregon’s medical marijuana laws.34

It is conceivable that an injured worker with a credible workers compensation claim who has a medical marijuana card to treat a compensable condition may be entitled to reimbursement for the medication. By example, a cancer patient with an accepted cancer claim has a medical marijuana card to stimulate appetite during chemotherapy, would have a pretty good chance of being compensated. However, at this time, that same worker could lose his job for testing positive for marijuana   if a zero-tolerance drug policy is in effect with the employer even though the use was compensable under workers’ compensation.

On the other hand, the use of medical marijuana that causes a workplace injury will most likely be a bar to recovery as any other impairment. Workers compensation carriers may rely on the following arguments to deny medical marijuana benefits:

Marijuana is a Schedule I drug, and it is illegal to prescribe, purchase, dis- tribute it in the United States.

Marijuana is not FDA approved.

Medical marijuana is not approved in the Official Disability Guidelines (ODG), American College of Occupational and Environmental Medicine (ACOEM), or any of the state treatment guidelines.

The status of marijuana as a Schedule I substance prohibits the assigning of a National Drug Code (NDC) or a procedure code for billing purposes.

Workers’ compensation carriers are not currently required to cover the cost in several states, including Colorado.

Workers’ compensation carriers need to establish medical marijuana policies so claim handlers use uniform standards rather than personal opinions.

According to a study published in the Journal of the American Medical Association, it was determined that states with permissible medical marijuana had a nearly 25 percent lower annual rate of overdose deaths from opioids, including prescriptive pain killers such as oxycodone, hydrocodone, morphine and street opiates like heroin.35

In a 2008 court of appeals case, the claimant was denied continuing workers’ compensation benefits of temporary total disability because he was responsible for the termination of his employment. The claimant was released to modified employment approximately a month after his work-related injury. However, he was since terminated from his employment shortly after testing positive for marijuana. “In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributed to the on-the-job injury.”36

Currently, the state of the law in Colorado is that an injured worker does not have to be compensated for medical marijuana. However, the state of the law is a moving target requiring frequent updates.

Can a Colorado Unemployed Worker Receive Unemployment Benefits for Being Terminated for Testing Positive for Marijuana at work?

In this rapidly evolving dance be- tween state and federal unemployment and marijuana law, states are divided on the issue whether or not an employee terminated for testing positive for marijuana in violation of the employer’s zero-tolerance drug policy when he has a valid and current medical marijuana card can collect unemployment benefits.

The Colorado Court of Appeals affirmed the Industrial Claim Appeals Office (Panel) decision to disqualify Mr. Beinor from unemployment benefits under section C.R.S. §8-73- 108(5)(e)(IX.5) which allows for the disqualification of unemployment benefits with “The presence in an individual’s system, during working hours, of not medically prescribed controlled substances … as evidenced by a drug or alcohol policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests.” Mr. Beinor was pro se. He had a valid medical marijuana card for severe headaches under Colo. Const. art. XVIII, Sec.

14(2)(b). The deputy initially denied the request for benefits, but a hearing officer reversed the decision finding that Mr. Beinor was not responsible for the separation because there was no reliable evidence to suggest he was not eligible for the medical marijuana card or that use of marijuana negatively impacted his job performance. This determination was reversed by the court of appeals saying that the use of medical marijuana by an employee holding a registry card under Amendment XVIII, §14 is not pursuant to a prescription, and, therefore, does not constitute the use of a “medically prescribed controlled substance” within the meaning of C.R.S. §8-73- 108(5)(e)(IX.5). Accordingly, the presence of medical marijuana in an individual’s system during work hours is currently grounds for disqualification from unemployment benefits.37

Furthermore, Mr. Beinor unsuccessfully argued that he had the right to use marijuana under the Colorado constitution and was, thus, not responsible for his separation from employment.

However, the court determined that the constitutional provisions “address exceptions to criminal laws” and not broad protections of an unlimited right to use marijuana.38

There were strong dissents holding a patient’s use of marijuana for medical purposes is lawful. The language is ambiguous and the intent of the voters was to authorize the medical use of marijuana. The claimant’s lawful use of medical marijuana outside the work- place with no evidence for impairment of performance in the workplace cannot constitutionally be used as a basis for denying unemployment benefits.39

In Curry v. Miller Coors, Inc., the Motion to Dismiss was granted, upholding Beinor, because the employee tested positive for marijuana which violated the employer’s written drug policy.40

In 2011, the Colorado Court of Appeals determined the employer must comply with C.R.S. §8-73-108(5)(e)(IX.5) and

prove the “presence in an individual’s system, during working hours, of not medically prescribed controlled sub- stances.” Employer must produce evidence that the laboratory performing the drug test was licensed or certified as expressly required under C.R.S.

  • 8-73-108(5)(e)(IX.5). The court was, furthermore, not persuaded by the employer’s assertion that this case is very similar to a precedential opinion issued by the Panel titled “Concerning Fault for Separation Caused by Off-the-Job Use of Medical Marijuana.” Department of Labor and Employment Reg. No.

11.2.16.1, 7 Code of Colorado Regulations 1101-2. In this case the employer failed to present such evidence regarding the qualifications of the laboratory, thus, the employee received unemployment benefits.41

The current state of Colorado law is that unemployment benefits are awarded on a case by case basis. However, there is law supporting the denial of unemployment benefits for a worker who tested positive for marijuana.

CONCLUSION

When is the last time the United States has undergone such an emerging shift in law, medicine, society, attitude and policy? The marijuana laws remain unsettled and are continuously being made and modified. Therefore, it is critical for the lawyer to research the latest and greatest, or not so greatest authority, before reliance.

Cathy A. Klein, M.S.N., M.S.Ed., R.N., A.P.N, J.D. is an attorney-mediator with Conflict Resolution Services, Inc., and in private practice. She is asked to mediate all aspects of marijuana, employment, personal injury, health care and hospital long-term care issues, to name a few.

 

Endnotes:

1 Marijuana Drug Detection Time Chart by Medical Disposables, Inc., available at does-weed-stays-in-your-system-s/1835.htm.

2 State ex rel Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014).

3 Amy Berning & Dereece D. Smither, Understanding the Limitations of Drug Test Information, Reporting and Testing Practices in Fatal Crashes, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN, DOT

HS 812 072 (Nov. 2014), available at www.nhtsa.gov.

4 Richard Compton & Amy Berning, Results of the 2007 National Roadside Survey of Alcohol and Drug Use by Drivers , NAT’L HIGHWAY TRAFFIC SAFETY ADMIN, DOT HS 811 175 (July

2009), available at www.nhtsa.gov.

5 Supra n. 3.

6 Id.; see Richard Compton, M. Vegega & Dereece Smither, Drug-Impaired Driving: Understanding the Problem and Ways to Reduce It: A Report to Congress, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN, DOT

HS 811 268 (Dec. 2009), available at www.nhtsa.gov.

7 Id.

8 United States Government Accountability Office Report to Congressional Commit- tees, “Drug-Impaired Driving: Additional Support Needed for Public Awareness Initiatives,” February, 2015.

9 Id.

10 Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. App. 2013)

11 Id.

12 C.R.S. § 24-34-402.5; Coats, 303 P.3d 147.

13 Coats, 303 P.3d 147.

14 Id.

15 Id.

16 Beinor v. Indus. Claim Apps. Ofc., 262 P.3d 970, 978 (Colo. App. 2011).

17 Coats, 303 P.3d at 155; see C.R.S. § 24-

34-402.5.

18 Coats, 303 P.3d at 157-158.

19 Id.

20 42 U.S.C. §12101 et seq.

21 Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999); See

generally Robertson v. Neuromedical Ct., 161 F.3d 292, 294 (5th Cir. 1998); Burch

  1. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996).

22 Zenor, 176 F.3d at 862.

23 Id.

24 Collings v. Longview Fibre Co., 63 F.3d 828, 832-33 (9th Cir. 1995) (employer’s termination of employees who used, sold and purchased marijuana on company property was upheld on the basis that the discharge was the result of misconduct, not the employees’ claims of disability).

25 42 U.S.C. § 12114(a)

26 See Id. § 12114(b), (d); See Id. §

12114(d) (2)

27 Coats v. Dish Network, 303 P.3d 147 (Colo. App. 2013)

28 Hogg v. Oklahoma County Juvenile Bureau, 292 P.3d 29 (Okla. 2012)

29 Colo. Const. Art XCIII §14(10) (a)

30 Wash. Rev. Code §69.51A.060(2)

31 Vialpando v. Ben’s Auto Servs., 331 P.3d 975 (N.M. App. 2014)

32 Cockrell v. Farmers Ins. Co. and Liberty Mut. Ins. Co., 2012 Cal. Wrk. Comp.

P.O. Lexis 456

33 Miguel Maez v. Riley Indus. and Chartis, 2015 N.M. App. Lexis 7

34 McKinney v. Labor Ready and Reliance Ins. Co. No. 5005302 (Iowa Workers Comp. Comm’r Nov. 14, 2002)

35 Marcus A. Bachhuber et al., Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010, JAMA, Oct. 2014

36 Gilmore v. Indus. Claims Appeals Ofc., 187 P.3d 1129 (Colo. App. 2008)

37 Benoir v. Indus. Claims Appeals Ofc., 262 P.3d 970 (Colo. App. 2011)

38 Id.

39 Id.

40 Curry v. Miller Coors, Inc., U.S. Dist. Lexis 118730, 7 (D. Colo. Aug. 21, 2013)

41 Sosa v. Indus. Claims Appeals Ofc., 259 P3d 558 (Colo. App. Div. 6 2011)