It’s legal to smoke pot in Colorado, but you can still get fired for it

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 off-time 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 marijuana, 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 promptly 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 pro-marijuana 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.

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