NEW YORK (MainStreet) — A decision by the Colorado Supreme Court today determined that employers in the state who prohibit their employees from medical marijuana use can continue to discipline and terminate workers who test positive for the drug.
Despite the fact that Colorado passed a lawful off-duty conduct statute several years ago, the Supreme Court found that even though medical marijuana use is legal in the state, federal law still prohibits the use of cannabis for medical or recreational purposes. The main issue is that the federal law prohibiting the recreational use of marijuana is still trumping state law. The decision means that medical marijuana use is not “lawful” for purposes of Colorado’s lawful off-duty conduct statute.
The unanimous decision by the Supreme Court in the Coats v. Dish Network case means it is “highly unlikely” that employees in other states will succeed in similar lawsuits of wrongful termination under state lawful off-duty conduct statutes after being fired for their medical marijuana use, said Adam Brown, a Denver-based attorney at Fisher & Phillips, a law firm that represents employers nationally in labor and employment matters.
“Other future courts will look to Colorado to see what our court ruled,” he said. “This is a very clearly worded opinion.”
Since Colorado approved recreational use of marijuana in 2012, it remains to be seen on how firm some employers will react in their enforcement of this ruling.
“Some employers are more lax about off-duty marijuana use, while others are stricter and feel strongly about prohibiting off-duty marijuana use,” Brown said. “The Court issued an employer-friendly opinion that will have wide-ranging implications for all Colorado employers.”
In 2010, Brandon Coats, a quadriplegic, was fired by Dish Network for using marijuana off the clock for the pain caused by his “intense muscle spasms” that were the result of a non-work related car accident, he said. Coats, who worked as a customer service representative for three years, claimed that a Colorado statute holds that people can't be penalized for participating in legal activities while not at work. He was fired after a random drug test because of Dish Network’s zero-tolerance drug policy.
Colorado’s off-duty activities statute prohibits employers from discriminating against or terminating employees who engage in lawful activities outside of work. Coats had argued that his medical marijuana use was “lawful” under state law and his termination violated the statute.
The Colorado Court of Appeals rejected his claim and ruled that although medical marijuana use is legal in Colorado, federal law still prohibits any use of marijuana. The Colorado Supreme Court agreed with the court of appeals and concluded “that it must look to both state and federal law to make the critical determination,” Brown said.
The decision is a “significant victory” for employers, Brown said. Even though the decision only mentions medical marijuana, “its logic can easily be extended to cover recreational marijuana use, which is similarly unlawful under federal law and thus not lawful conduct for purposes of Colorado’s lawful off-duty conduct statute,” he said.
The decision will affect thousands of medical marijuana users who depend on cannabis to relieve their pain, said Kris Krane, currently a managing partner of 4Front Ventures, a Phoenix-based marijuana consultancy firm and a former associate director of NORML and fomer executive director of Students for Sensible Drug Policy.
“Patients suffering serious debilitating conditions should never have to choose between their livelihood and the medicine that helps them survive,” he said. “Hopefully, most employers will choose to make exceptions to their drug testing policies for medical patients, recognizing that employees who can manage their symptoms and diseases make happier and more motivated workers.”
This ruling “underscores the need” for other states who are planning to enact medical marijuana laws to include specific protections for patients when they are using their medicine outside the workplace, Krane said. Those employees should not be punished for failing a drug test at work.
Too many people who are afraid to lose their jobs could opt to stop using medical marijuana because they can not afford to be fired, said Mike Perinotti, co-founder of MarijuanaStocks.com in Miami.
“People will choose their jobs over medical marijuana and this is preventing people from getting the best possible treatment,” he said. “That’s a shame. You’re not allowing those people who have a certain ailment or disease to live a better life.”
The only positive outcome is that this ruling could encourage more dialogue and “speed up the discussion in Congress,” Perinotti said. At some point, he predicts the use of medical marijuana will not be classified as an illegal drug by the federal government.
“The ruling will bring this issue to light because there is a disconnect and will push them to light a fire to fix this,” he said.
If you indulge in smoking cannabis during a trip to Colorado or Washington, but live in the other states where it is illegal to smoke the drug recreationally, the law is not on your side, said Liza Getches, a partner at Moye White, a Denver law firm. If you are faced with a random drug test and it comes back positive, you could still lose your job.