Ivo Skoric, a 59-year-old Rutland resident, first started working for the Marble Valley Transit Authority in 2020 as a bus fueler and washer, spending his days cleaning out the vehicles in a garage.
He did this until Jan. 9, 2023 — his final day on the job. The transit authority fired Skoric, who is prescribed medical marijuana by a Vermont doctor and uses it off duty to treat chronic pain, after he tested positive during random drug screening.
After filing for unemployment benefits, the state Department of Labor denied Skoric’s claim, saying that he had engaged in “misconduct” under state law, thus making him ineligible for benefits.
On Wednesday, Skoric appeared before the Vermont Supreme Court to argue that the state had misinterpreted the law.
“Cannabis users should not be penalized or sanctioned by the state for using medicine that the state itself has made legal,” said Skoric, who is representing himself in the case. “My position is that the off-duty use of cannabis for state-sanctioned medical purposes cannot and should not be qualified as misconduct by the state.”
Skoric had earlier appealed the labor department’s decision to the Vermont Employment Security Board, which upheld the ruling in October. He then appealed to the state’s highest court, asking it to reverse the board’s ruling.
In an amicus brief filed with the court, the Vermont ACLU, along with Vermonters for Criminal Justice Reform and Disability Rights Vermont, supported Skoric’s argument. The state may not withhold unemployment benefits from individuals simply because they used medical cannabis off-duty, the groups argue, even when an employer may prohibit cannabis use generally, or when the federal government requires drug testing.
While marijuana remains illegal federally, Vermont is one of 24 states where cannabis is sold and consumed legally, and one of 38 that recognize it as having medicinal properties.
Vermont’s cannabis laws contain carve-outs for types of use that could result in legal penalties — such as the use of marijuana while operating a vehicle, or violating an employer’s policy of using while on the job.
But Harrison Stark, an attorney with the Vermont ACLU, said that the state’s denial of unemployment benefits to Skoric violated Vermont law. Even if an employer has a policy against using marijuana, off-duty use of medical cannabis should not count as “misconduct” that disqualifies someone from receiving unemployment benefits from the state, he said.
“The denial of unemployment benefits is a denial of right and privilege under state law,” Stark said at Wednesday’s court hearing.
Justice Karen Carroll asked Stark about businesses that must comply with federal law. “Even though Vermont has legalized marijuana, what is a business like this supposed to do in that event?” she asked.
The business is still entitled to terminate the individual, Stark said — Skoric is not challenging the termination itself — but “denying an individual who has just lost their job unemployment benefits because they used a state-sanctioned medicine is quite severe,” Stark said.
Jared Adler, an attorney representing the Department of Labor, urged the justices to affirm the employment security board’s decision. “This is a case about an employee’s informed decision to violate his employer’s workplace safety policies,” he said.
Justice William Cohen at one point asked Adler whether there “is a distinction in your mind between consumption and impairment?”
Adler said that there was a distinction, but that there is no “clean way for an employer in this instance to distinguish between consumption and impairment because obviously cannabis is different from other drugs and can exist in an individual’s system after they’ve consumed it.”
“So, I think there’s a balancing test that needs to be considered for trying to protect the public and protect the employer’s need to conform their policies with federal law,” he said.
Cohen then compared an employee who gets impaired from drinking alcohol the night before work to someone who consumes marijuana, and asked whether those hypotheticals should be distinguished.
Adler noted that the state Legislature was unable to arrive at a scientific answer on how to test an individual for marijuana impairment while driving, for example, “so, there’s obviously this tension here where the employer — they need to protect their interests here.”
“They have an interest in maintaining federal funding and have an interest in having workplace safety and public safety in mind when they’re implementing these policies,” he said.
The Supreme Court typically issues its decisions several months after hearing cases.
