Jason Beinor was a Denver street sweeper, working on the 16th Street Mall with a broom and dustpan. He had a perfect employment record, with no written warnings. Yet he was terminated from his job and denied unemployment benefits.
Beinor suffers from severe migraine headaches – a lasting consequence of a prior assault. Like almost a hundred thousand other Coloradans, Beinor is a lawful medical marijuana patient, and uses marijuana in an off-work capacity to ameliorate his suffering. Unfortunately for Beinor, a random drug test in February 2010 came up hot, costing him his job.
Jason Beinor never used marijuana on the job, and his private, medical use never interfered with his job performance. However, under his employer’s zero-tolerance policy, the left-over, non-psychoactive THC in Beinor’s system was considered an illegal drug, and Beinor was immediately fired. Because Beinor believed he had been fired through no fault of his own – his marijuana had been doctor-recommended and lawfully-obtained after all – he filed for unemployment compensation benefits. He was denied, the Colorado Court of Appeals upheld the decision. Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Recently, the Colorado Supreme Court denied cert.
Under Colorado statutes, “[t]he presence in an individual’s system, during working hours, of not medically prescribed controlled substances” disqualifies that employee from benefits. Of course, Beinor had marijuana – or at least non-psychoactive THC – in his system during working hours. But he believed he was safe because it had been medically prescribed to him. Unfortunately, the written documentation physicians provide their patients recommending medical use of marijuana is specifically not a prescription. This is where federal law comes into play.
Doctors across the country must be registered with the Drug Enforcement Administration (DEA) in order to lawfully prescribe medication. However, because of marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act, registered doctors cannot prescribe marijuana, but only recommend it. Indeed, their recommendations must clearly state, “[t]his assessment is not a prescription for the use of marijuana.” Thus, Beinor’s medical marijuana was considered “not medically prescribed.”
In the grand scheme of things, legal technicalities such as whether a doctor’s written recommendation is considered a “prescription” wouldn’t matter if Beinor and other patients had a constitutional right to use marijuana. Unfortunately, the majority of the Colorado Court of Appeals in Beinor did not interpret Amendment 20 to grant that right. Instead, it determined that Amendment 20 only created limited exceptions to state criminal laws for patients, primary caregivers, and physicians concerning the medical use of marijuana.
The Court pointed specifically to a clause in Amendment 20 that reads: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” As Judge Gabriel, who dissented from the majority, astutely pointed out, Beinor never used marijuana in his work place, and that provision does not logically include “the presence of marijuana in one’s blood after the lawful use of medical marijuana at home.” Judge Gabriel further observes that, under such an interpretation of the law, “many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk.”
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