Le­gal pot laws don’t cover work­ers

A Colorado court rules that busi­nesses can fire em­ploy­ees who use mar­i­juana dur­ing their off-time.

Los Angeles Times - - THE NATION - By Nigel Duara

The Colorado Supreme Court has ruled that busi­nesses can fire em­ploy­ees who use mar­i­juana dur­ing their off-time, in­clud­ing those with a le­gal pre­scrip­tion for med­i­cal pot.

In a case that has been closely watched by em­ploy­ers in some states that have le­gal­ized mar­i­juana for medic­i­nal or recre­ational use, the Colorado court found that Dish Net­work law­fully fired a quad­ri­plegic em­ployee and med­i­cal mar­i­juana user who failed a drug test. Cus­tomer ser­vice rep­re­sen­ta­tive Bran­don Coats, 35, used mar­i­juana in his off­time to deal with painful mus­cle spasms.

The court ruled that the fed­eral pro­hi­bi­tion on pot makes the drug un­law­ful de­spite Colorado’s ap­proval of its use for medic­i­nal pur­poses. The rul­ing, while not bind­ing in other states, adds to a se­ries of court losses by med­i­cal mar­i­juana pa­tients who lost their jobs af­ter us­ing pot.

Coats sued af­ter he was fired on June 7, 2010, al­leg­ing wrong­ful ter­mi­na­tion. He ar­gued that mar­i­juana was made “law­ful” for the pur­poses of em­ploy­ment law when Colorado vot­ers le­gal­ized it for medic­i­nal use in 2000. Vot­ers le­gal­ized it for recre­ational use in 2012.

A trial court dis­missed Coats’ suit, say­ing the state’s le­gal­iza­tion of med­i­cal mar­i­juana only pro­vides a de­fense against crim­i­nal pros­e­cu­tion, and does not make the use of mar­i­juana a “law­ful ac­tiv­ity” that is pro­tected against em­ploy­ment dis­crim­i­na­tion.

When the case went to the Colorado Court of Ap­peals, jus­tices dif­fered with the trial court’s rea­son­ing, but still found that Coats was right­fully ter­mi­nated be­cause mar­i­juana is pro­hib­ited by fed­eral law.

The Colorado Supreme Court agreed with that rea­son­ing, vot­ing 6 to 0 with one ab­sten­tion.

“Noth­ing in the lan­guage of the [em­ploy­ment] statute lim­its the term ‘ law­ful’ to state law,” wrote Jus­tice Al­li­son H. Eid. “In­stead, the term is used in its gen­eral, un­re­stricted sense, in­di­cat­ing that a ‘law­ful’ ac­tiv­ity is that which com­plies with ap­pli­ca­ble law, in­clud­ing state and fed­eral law.”

Coats said in a state­ment that the de­ci­sion was a set­back for him per­son­ally, but ad­vanced the cause of med­i­cal mar­i­juana pa­tients in the work­place.

“If we’re mak­ing mar­i­juana le­gal for med­i­cal pur­poses, we need to ad­dress is­sues that come along with it such as em­ploy­ment,” Coats said. “Hope­fully views on med­i­cal mar­i­juana — like the ones in my spe­cific case — will change soon.”

Dish Net­work did not re­ply to mul­ti­ple phone in­quiries.

Colorado Atty. Gen. Cyn­thia Coff­man, whose of­fice filed friend-of-the-court briefs on be­half of Dish Net­work, lauded the de­ci­sion be­cause it gave em­ploy­ers com­plete con­trol over drug use in the work­place.

“Not ev­ery busi­ness will opt for zero tol­er­ance,” Coff­man said Mon­day, “but it is im­por­tant that the lat­i­tude now ex­ists to craft a pol­icy that fits the in­di­vid­ual work­place.”

The fed­eral Amer­i­cans With Dis­abil­i­ties Act is meant to pro­tect em­ploy­ees from dis­crim­i­na­tion based on a med­i­cal con­di­tion. But the ADA doesn’t pro­tect em­ploy­ees from los­ing their jobs af­ter test­ing pos­i­tive for mar­i­juana be­cause the drug is still listed next to heroin, LSD and Ec­stasy on the fed­eral gov­ern­ment’s list of Sched­ule I drugs, its most dan­ger­ous cat­e­gory.

De­spite the state’s re­laxed view on pot, the Colorado Con­sti­tu­tion states that em­ploy­ers don’t have to amend their poli­cies to ac­com­mo­date em­ploy­ees’ mar­i­juana use.

In some other states, em­ploy­ment pro­tec­tion is built into the mar­i­juana law. Such em­ploy­ment pro­tec­tion statutes of­ten serve to dis­suade em­ploy­ers from tak­ing ac­tion against med­i­cal mar­i­juana pa­tients, keep­ing the mat­ter out of court, said Karen O’Keefe, di­rec­tor of state poli­cies at the Mar­i­juana Pol­icy Pro­ject, an ad­vo­cate of le­gal­iza­tion.

Pa­tients in Rhode Is­land, for in­stance, may not be de­nied school en­roll­ment, hous­ing or em­ploy­ment be­cause they are med­i­cal mar­i­juana card­hold­ers.

“The is­sue has only been lit­i­gated in some med­i­cal mar­i­juana states, so it’s not clear which ones might ul­ti­mately be found to pro­tect pa­tients from em­ploy­ment dis­crim­i­na­tion,” O’Keefe said.

Ari­zona, Delaware and Min­nesota of­fer the strong­est pro­tec­tions for med­i­cal mar­i­juana pa­tients, she said, adding that the Colorado Supreme Court’s de­ci­sion could serve as guid­ance in other states.

“For those states with sim­i­lar lan­guage, it could have an im­pact,” she said.

The Cal­i­for­nia Supreme Court ruled in 2008 that em­ploy­ers may fire work­ers who test pos­i­tive for mari- juana, find­ing that the state law pro­tec­tions don’t ex­tend to em­ploy­ment.

Le­land Berger, an Ore­gon at­tor­ney who helped un­der­write that state’s mar­i­juana le­gal­iza­tion law, said he and other drafters of the pot mea­sure de­lib­er­ately left out em­ploy­ment pro­tec­tion for po­lit­i­cal rea­sons. “It never would have passed oth­er­wise,” Berger said.

Berger said he ad­vised his clients that the law was lim­ited in what it pro­tected: for­fei­ture, ar­rest and pros­e­cu­tion, but not the right to em­ploy­ment.

Even in states where em­ploy­ment pro­tec­tions ex­ist, there is no guar­an­tee that em­ploy­ees fired for mar­i­juana use will pre­vail in court.

Joseph Casias of Bat­tle Creek, Mich., was us­ing mar­i­juana for the pain as­so­ci­ated with an in­op­er­a­ble brain tu­mor. When he twisted his knee at his job at Wal-Mart, he was or­dered to take a drug test. Casias told his man­ager about his mar­i­juana use, but was fired days later, per com­pany pol­icy.

He sued, and lost, in court for the same rea­son Coats lost his job — the fed­eral ban on mar­i­juana trumped state law.

“The case and many oth­ers like it high­light the gray ar­eas and le­gal fixes needed in Colorado and other states that have re­formed their mar­i­juana laws,” the pro­mar­i­juana Drug Pol­icy Al­liance said in a state­ment Mon­day. “Any rights be­stowed upon civil­ians by state law fall far short of fully pro­tect­ing med­i­cal mar­i­juana pa­tients and le­gal adult users of mar­i­juana.”

In ad­di­tion to Colorado, recre­ational pot use is le­gal in Washington state and Alaska and will be le­gal in Ore­gon on July 15.

‘The case and many oth­ers like it high­light the gray ar­eas and le­gal fixes needed in Colorado and other states that have re­formed their mar­i­juana laws.’

— Drug Pol­icy Al­liance state­ment


Bren­nan Linsley As­so­ci­ated Press

BRAN­DON COATS lost a law­suit against Dish Net­work over his fir­ing for fail­ing a drug test. He says he used mar­i­juana to deal with mus­cle spasms.

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