Med. marijuana patient loses street-sweeping job, benefits, court case after failing drug test
Jason Beinor is a legal medical marijuana patient. But that didn't prevent his firing as a street sweeper on the 16th Street Mall after registering a positive in a random blood test -- and neither did it convince the Colorado Court of Appeals that he deserved unemployment benefits following his termination. What's Beinor's take on the case, which has major implications for Colorado's 100,000-plus MMJ card holders?
"I believe the laws are biased against [medical] marijuana users," he notes via e-mail. "However, they are the LAW written by an elected government."
Beinor became a medical marijuana patient to deal with severe headaches, and he raves about the positive impact cannabis has had on him. "I believe in the benefits of MMJ in my own life," he stresses. "I've lost weight, stopped abusing alcohol, reconnected with my family and community."
Denver's 16th Street Mall.
None of this mattered to Service Group, Inc., the company that employed him to sweep Denver's 16th Street Mall using a broom and dustpan. Beinor failed a random drug test in February 2010 and was promptly fired due to SGI's zero-tolerance policy when it comes to marijuana and other illegal substances.
Afterward, Beinor filed for unemployment benefits -- and while his claim was initially denied, according to the August 18 Colorado Court of Appeals ruling on view below, a hearing officer later reversed that decision. He found Beinor wasn't at fault for losing his job because there was "no reliable evidence to suggest that... claimant was not eligible for a medical marijuana license" or that his use of the marijuana negatively impacted his job performance -- a determination SGI didn't dispute. And besides, the hearing officer wrote, "Claimant has a state constitutional right to use marijuana."
Thanks to this decision, Beinor began receiving unemployment benefits that eventually totaled around $1,500. But SGI appealed the decision, and a panel set aside the hearing officer's order under Article XVIII of the Colorado constitution, which states that an employee who tests positive during working hours for "controlled substances" that are "not medically prescribed" doesn't qualify for benefits.
In this hearing and two others, including the one before the Colorado Court of Appeals, Beinor represented himself. "If I was intent on winning the State Appeals case, I should have gotten a lawyer," he concedes. "I never really thought I would win this case, though."
He was right. The Court of Appeals ruled in favor of SGI by a two-to-one margin. Judge David Richman, who wrote the majority opinion to which Judge David Furman concurred, held that doctors in Colorado aren't able to prescribe marijuana, just recommend it -- and the distinction is key. Moreover, Richman determined that the "Colorado constitution does not give medical marijuana users the unfettered right to violate employers' policies and practices regarding use of controlled substances" despite the amendment that legalized medical use of a product that's still illegal at the federal level.
Judge Richard Gabriel saw things differently. In his view, patients are forbidden to use cannabis at their workplace, but "I am not persuaded that the presence of medical marijuana in one's blood amounts to either 'use,' which I believe connotes contemporaneous consumption, or 'possession,' which I interpret as holding at one's disposal, within the meaning of the above-quoted definition. If it did, then under a zero-tolerance policy like that at issue here, 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."
All true, in Benior's view. "Because marijuana is a Schedule 1 substance and is so illegal at the federal level that even a doctor is not allowed to prescribe it, employers can terminate anybody who test positive for marijuana even if they have a certificate from the state allowing them to use MMJ," he points out. "After being terminated, you will not receive unemployment benefits. Most working people understand this."
Not that he feels such rules are just. "It would be very easy for the U.S. Congress to reschedule marijuana and allow doctors to prescribe this medicine," he believes. "However, Congress has no will to do this. Many petitions have been submitted to Congress for the reschedule of marijuana; they simply refuse to do it. I can only speculate as to their reasons. Alcohol was made legal by an amendment to the Constitution. Maybe MMJ needs to be put into the U.S. Constitution as well."
Right now, Beinor is upbeat about his life. "I'm working again," he reveals -- and he also received a waiver stating that he doesn't have to pay back the $1,500 in unemployment benefits he received following his first appeal. As such, he's able to keep the appeals court decision in perspective.
"My case before the state did nothing to change the status of MMJ as it relates to the denial of unemployment benefits," he acknowledges. "The state court simply upheld the policy of the ICAO" -- the Industrial Claim Appeals Office, one of the targets, along with Service Group, Inc., of his complaint. "What the ICAO and SGI and the state appeals court did was entirely justified by laws written by Colorado representatives.
"Before my case, a claimant couldn't receieve UI benefits after being terminated for marijuana, and after my case the same is true. If I thought I could have won and overturned the decision allowing MMJ patients to receive UI benefits, I would have done everthing in power to do so. My case was pretty flimsy, though, and I didn't think it could sway a high court away from its accepted policy of denial of benefits for MMJ patients."
Page down to read the Colorado Court of Appeals decision, which can also be accessed by clicking here.
More from our Marijuana archive: "Medical marijuana: In Boulder, 'moral turpitude' arrests = license rejections."
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