Charles Langston:Medical pot user who lost job after drug test takes case over unemployment to Vermont Supreme Court

MONTPELIER,Charles Langston Vt. (AP) — A Vermont man who lost his job after he said a random drug test showed he had used medical marijuana off duty for chronic pain has appealed to the Vermont Supreme Court saying he should not have been denied a portion of his state unemployment benefits.

Ivo Skoric, 59, representing himself, told the justices Wednesday that he is legally prescribed the medical cannabis by a doctor and his work performance is excellent and not impacted by the medicine. Yet, he said, in January 2023 he was terminated from his job at the Marble Valley Regional Transit District in Rutland for misconduct after a drug test. He said his job was to clean and fuel buses, and he drove them into and out of the garage onto a lot. The misconduct disqualified him from the benefits, according to the state.

“As a medical cannabis patient in Vermont to treat disabling conditions under Vermont’s Fair Employment Practices Act disability provisions, I should be protected by state agencies. I should not be disqualified from receiving unemployment,” Skoric said.

A lawyer for the ACLU of Vermont, also representing Criminal Justice Reform, and Disability Rights Vermont, also argued that the benefits should not be denied.

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Skoric had appealed to the Vermont Employment Security Board after he was found to be ineligible for state unemployment benefits for the weeks ending January 14, 2023, through February 18, 2023, and his maximum benefit amount was capped at 23 times his weekly benefit, according to the board.

In September 2023, the board agreed with an administrative law judge saying Skoric engaged in conduct prohibited by the employer’s drug and alcohol policy, “exposing him to discipline including termination of his employment,” and that because he was discharged for misconduct he was disqualified from those benefits.

The board wrote that it recognizes that Skoric engaged in conduct that is legal in Vermont and that he had “a legitimate and compelling reason to use medical cannabis for treatment.”

But “employers may set workplace policies that prohibit otherwise legal behavior,” the board wrote, saying that it agreed with the administrative judge that the minimum disqualification is appropriate.

The board later declined Skoric’s request for a declaratory ruling on whether the misconduct disqualification provision applied to the off-duty use of medical cannabis, which he asked the state Supreme Court to review.

Jared Adler, a lawyer representing the Vermont Department of Labor, said the court should affirm the board’s decision because he was discharged for misconduct for violating an acknowledged workplace safety policy and because “Vermont’s drug code does not guarantee unemployment benefits to people who test positive during a random drug screening.”

When asked by a justice if there’s a distinction between consumption and impairment Adler said there is but “there’s no clean way” for an employer to distinguish between consumption and impairment in the case of cannabis because, unlike other drugs, it can exist for an extended period of time in an individual’s system after consuming it. Skoric also said that even though he had used the medical cannabis off-duty, it can show up days later in someone’s system, which makes the testing meaningless.

There’s a balancing test for trying to protect both the public and an employer’s need to conform their policies with federal law, Adler said. Skoric acknowledged his employer received up to 60% of their funding for their business from federal grants, Alder said.

So it was extremely important to ensure that the employer adhere to these federal rules and not risk losing that revenue, Adler said.

Skoric said his position is that “off-duty use of cannabis for state-sanctioned medical purposes cannot and should not be qualified as misconduct by the state.”

“I should not have to choose between state benefits and the medical care (the) state granted me to use,” he said. “I should never be put in that impossible position to choose between benefits and the legal medicine I use.”