- The Washington Times - Monday, June 15, 2015

DENVER — Coloradans have a right to use medical marijuana with a doctor’s approval, but that doesn’t mean they can’t be fired for it.

In a case with far-reaching implications for the booming marijuana industry nationwide, the Colorado Supreme Court ruled Monday that Dish Network was within its rights to pink-slip Brandon Coats, a quadriplegic and medical marijuana patient, after he tested positive for pot during a random drug test.

The case has been closely watched by industry advocates, as well as labor and employment lawyers grappling with the implications of marijuana in the workplace as more states jump on the medical and recreational bandwagon.

“It’s a big case for those of us following the medical marijuana trend because it’s a very new phenomenon in the country and there’s very little case law on how employers should operate,” said Jeffrey Dretler, a partner with the national labor and employment law firm Fisher & Phillips.

In its 6-0 decision, the Colorado high court ruled that Mr. Coats was not protected by the state’s Lawful Off-Duty Activities Statute, which forbids employers from firing workers for after-hours legal conduct such as smoking and drinking.

The court reasoned that regardless of Colorado’s state policies, marijuana remains illegal under federal law for all purposes including medical ones.

“There is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law,” said Justice Allison Eid in the 11-page opinion upholding a Colorado Court of Appeals decision.

Mr. Dretler, whose firm represents management, said that the decision will undoubtedly be cited and “considered persuasive” in cases involving the rights of employers versus those of medical marijuana users wherever prescription pot is legal.

“The lesson would be that just because one law gives an employee a right to do something, it doesn’t mean it’s without repercussions,” Mr. Dretler said. “It’s accepted you can’t be stoned at work. So this is all about what you can do off-duty.”

Michael Elliott, executive director of the Marijuana Industry Group in Denver, said the decision moves the ball squarely into the court of the state legislature, which has already come under pressure to add medical marijuana — and even recreational pot — to the state’s list of protected after-hours activities.

“This is a ripe issue for the state legislature to take on next year because the court is not commenting on whether it’s right or wrong,” Mr. Elliott said. “They’re just reading the law and saying the way the law is currently written, these patients don’t really have this protection because marijuana is still federally illegal. And that’s something that the state legislature can and should fix.”

Twenty-three states and the District of Columbia now allow medical marijuana use with a doctor’s prescription, but the “protections vary significantly from state to state, and issue to issue,” according to the Drug Policy Alliance.

Just three states — Arizona, Delaware and Minnesota — have laws to safeguard employees who use medical marijuana lawfully by “expressly prohibit[ing] employers from disciplining an employee for a positive marijuana test if that employee is a qualified patient.”

“However, in many other states the law expressly provides that employers may lawfully implement zero-tolerance drug policies, even for medical marijuana,” said the alliance in a statement.

In Arizona, employee protections were included in Proposition 203, the state’s 2010 ballot initiative legalizing medical marijuana. In other states, however, including Massachusetts, the law specifically says that employers need not accommodate medical marijuana users.

Advocates point out that pot-smokers are at a huge disadvantage versus drinkers when it comes to drug screening. Unlike alcohol, which clears the bloodstream quickly, pot remains detectable weeks after being smoked or ingested, when the user is no long high.

“Basically people will fail a drug test even though they are not impaired. That is extremely unfair, and it’s not like that with alcohol,” Mr. Elliott said. “When you’re done being drunk, the alcohol is no longer in your system or in your blood, whereas with marijuana it can stay in your system for weeks, maybe more than a month. So that’s the problem. You could get fired from your job for marijuana that you consumed three weeks beforehand.”

Art Wray, state director for the Drug Policy Alliance in Colorado, called Monday for a “medical marijuana bill of rights” that would offer “robust state protections for our patients and legal adult marijuana users.”

In 2012, Colorado and Washington became the first states to approve recreational marijuana use for adults 21 and over, followed in 2014 by Alaska, Oregon and the District of Columbia.

“Patients, advocates and legislators must find a way to extend the rights of patients and legal adult marijuana users when it comes to employment, housing and parental rights,” Mr. Wray said in a statement.

On the other hand, Gina Carbone of Smart Colorado said the decision should come as a cautionary tale for would-be pot users, especially young ones. While recreational users must be 21, the cut-off for medical marijuana in Colorado is 18.

“This decision is a good reminder to Colorado’s youth, many of whom are starting first jobs or summer jobs, that Colorado employers can continue to determine their own workplace drug policies,” Ms. Carbone said. “Coloradans were promised [marijuana] use would be regulated and companies would still be allowed to carry out their own drug policies.”

The Colorado high court’s ruling brings to an end a five-year legal battle between Mr. Coats and his former employer. Now 35, Mr. Coats, who was left paralyzed after a car accident in his teens, had obtained a prescription in 2009 for medical marijuana in order to help control spasms and seizures.

His attorney, Michael Evans, argued that Mr. Coats had never been impaired at work, and that he warned the company’s drug screener beforehand that he used marijuana and would fail the random test. Even so, Mr. Coats was fired a month after testing positive for THC, the active ingredient in marijuana.

Mr. Evans said he had no plans to appeal the decision to the U.S. Supreme Court.

“This case attracted national attention because it was the ‘perfect storm’ of facts, one that if Mr. Coats could not win, it left serious doubt as to who could,” Mr. Evans said in a statement Monday. “Most state courts and legislatures have been waiting for Colorado to issue this decision first before deciding how to structure their own state’s MMJ [medical marijuana] laws on employment.”

The Colorado Attorney General’s Office and business groups had lined up behind Dish Network, arguing that companies should have the latitude to set their own drug policies.

“The court’s decision allows Colorado companies the freedom to write their own employment policies regarding marijuana,” said Colorado Attorney General Cynthia H. Coffman in a statement. “Not every business will opt for zero-tolerance, but it is important that the latitude now exists to craft a policy that fits the individual workplace.”

Dish spokesman John Hall said in a statement that the company was “pleased with the outcome of the court’s decision today.”

“As a national employer, DISH remains committed to a drug-free workplace and compliance with federal law,” he said.

Now unemployed, Mr. Coats released a statement saying that he hoped his case had shed light on the problems faced by medical marijuana patients.

“Although I’m very disappointed today, I hope that my case has brought the issue of use of medical marijuana and employment to light,” said Mr. Coats. “If we’re making marijuana legal for medical purposes, we need to address issues that come along with it such as employment.”

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