A Colorado man who was terminated from his job for a positive drug test, despite being a registered medical marijuana user, is entitled to receive unemployment benefits, the Colorado Court of Appeals has ruled.

The relevant Colorado statute states that a claimant is not entitled to benefits if an employer can introduce competent evidence of:

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. . .

Unfortunately for medical marijuana proponents, in this case, the Court of Appeals upheld a finding of entitlement to benefits on very narrow grounds - that the employer had failed to introduce evidence that the lab where the drug testing was performed was certified or licensed. The court did not hold that medically prescribed marijuana is a "medically prescribed controlled substance" or that medical marijuana users are protected from losing their unemployment benefits due to a failed drug test.

To learn more, read Toke of the Town or the law firm of Sherman & Howard's client advisory about the case.

What does this mean for North Carolina claimants pursuing unemployment appeals? North Carolina law does not yet allow medical use of marijuana, so a positive drug test for marijuana may still result in a finding of misconduct and a denial of benefits.

However, just as in Colorado, North Carolina unemployment benefits law requires that drug test evidence introduced in an appeals hearing must meet the standards of the North Carolina Controlled Substance Examination Regulation Act. This means that employers may be required to prove, among other requirements, that testing was conducted by an approved laboratory, that the laboratory performed a confirmation test, and that the sample was made available to the claimant for a potential retest.

I am a North Carolina employment law and unemployment claims lawyer. If you are a claimant who has been wrongly denied unemployment benefits due to a drug testing issue, contact me. I represent claimants in unemployment hearings and will fight for your rights. Feel free to give me a call at (919) 886-5005 or email me at richard.d.allen.esq (at) gmail (dot) com today to discuss your case.

If you are a North Carolina employer, I can also draft or review your company's drug testing policies and procedures to make sure that they are in compliance with North Carolina law and that you are protected in the event of a claim by a former employee. Many employment law and unemployment benefits disputes arise from ambiguities in employer policies. If you protect yourself beforehand, you won't have to worry later. Feel free to contact me to discuss your options.

Photo by Goodnight London.