Employers can still fire employees for marijuana use, even in states where it's legal. But one case heard in Colorado's Supreme Court Tuesday morning could change that.
Brandon Coats, a 34-year-old quadriplegic medical marijuana patient from Colorado who was fired by Dish Network for his state-legal medical use in 2010, made his case in Denver before the highest court in the state on Tuesday, arguing that employers should not be able to fire patients like himself for using their medicine legally and outside of the workplace.
"Mr. Coats was never accused or suspected of being under the influence and received satisfactory performance reviews all three years," Coats' attorney Michael Evans argued in court, saying that Coats' use should fall under the state's Lawful Off-Duty Activities Statute. "He was fired after an unknown type or amount of THC was found after a mouth swab test. Dish knew he was a medical marijuana patient. The mere presence of THC is not proof of impairment."
Evans went on to say that the testing did not determine what kind of THC was found in Coats' system, or how much was present. There are active and inactive forms of THC, and inactive forms can remain in a person's body for more than 40 days after use.
But Dish Network attorney Meghan Martinez argued that whether or not Coats was ever impaired while at the workplace is not the issue. Rather, she said, "use" itself is the issue at hand. She defined "use" as simply having THC in one's system.
"He tested positive, had THC in his system," Martinez said. "We are alleging that he was using THC at the workplace. The definition of use is in the medical marijuana act [Colorado's Amendment 20]. It's the employment of something, the longstanding possession of something. He smoked marijuana while at home, but he crossed the threshold [to his office] with THC in his system. The use is the effects, it's the THC, it's the whole point of marijuana. So when he came to work, he was using."
"Whether or not he was actually impaired," Martinez continued, "is a different question."
Much of the argument from both sides was aimed at defining what exactly constitutes "lawful" use of medical marijuana outside of the workplace -- and how such use can be considered lawful when federal law still classifies marijuana as an illegal substance, even though the state of Colorado has legalized its use both medically and recreationally.
"We are arguing that it is lawful," Evans said. "There is a distinction between a state saying 'This is lawful, it's permitted, we allow it,' and the state [...] saying 'You have a constitutional right to do it.' The state is allowed to create laws so long as it does not create a positive and irreconcilable conflict [with federal law]."
Martinez disagreed, citing federal legislation.
"When you look at [Colorado's] medical marijuana act, there is nothing in that statute that says that this is lawful activity," she argued. "The MMA needs to be read much more narrowly. It's an affirmative defense, an exception to state criminal laws, and that's it. Marijuana is still unlawful, we know that from the Controlled Substances Act [of 1970]. The CSA has THC and marijuana as controlled substances that are illegal under the federal law."
Coats was fired from Dish Network, a satellite cable provider company based in Englewood, Colorado, more than four years ago, after testing positive for THC during a random drug test at work. Coats had been a patient on the state registry for about a year at that point. Evans told The Huffington Post that Coats had been a successful employee at the company, where he'd worked for three years serving in the customer service division as a telephone operator.
"We have the proof that he was [a top performer] in his evaluations," Evans told HuffPost. "I think he was late twice, and that was the extent of any discipline."
And while Dish doesn't claim that Coats was impaired at work, the company's decision was unequivocal -- Coats failed a drug test, so therefore he had to be fired.
Coats first challenged the firing in county court in 2011, but that case was dismissed on the grounds that medical marijuana is not "lawful activity."
Coats appealed that decision, but a state appellate court dealt another blow to his case in July 2013, upholding the trial court's decision in favor of Dish. The appellate judge ruled that when it comes to marijuana, federal law trumps state law.
When Coats was 16, he was a passenger in a vehicle that crashed into a tree. That accident paralyzed more than 80 percent of his body, and he has suffered from severe involuntary muscle spasms and seizures ever since.
"My spinal cord is broken, so messages don't get back and forth from my brain to my body," Coats told HuffPost. "My legs still work, but they just can't get the signal. Sometimes my whole body can just seize up."
At first, Coats used prescription drugs to combat the spasms, but over time their efficacy waned. Then his doctors recommended he start using medical marijuana. Coats joined Colorado's medical marijuana registry in 2009, hoping that the cannabis would alleviate his persistent spasms.
Medical marijuana changed his life, Coats said. Smoking a small amount of cannabis each evening proved to be an effective treatment, enabling him to go to work without discomfort the next day.
But like many companies, Dish Network has a zero-tolerance policy when it comes to any drug use, even if that drug is marijuana for medical use and legal in the state.
"To ensure a safe and productive work environment, Dish Network reserves the right to administer nondiscriminatory, unannounced random drug testing," the company drug policy reads. "No employee shall report to work or be at work with alcohol or with any detectable amount of prohibited drugs in the employee's system. Any violation of this statement of policy will result in disciplinary action up to and including termination."
"The policy is [...] a zero-tolerance policy," Martinez said Tuesday. "It doesn't matter if it's active or inactive, it doesn't matter if he was impaired or not."
While the Americans with Disabilities Act of 1990 protects most employees with serious medical conditions from discrimination, it doesn't protect their use of medical marijuana. And although 23 states and the District of Columbia have legalized marijuana for medical use, very few jurisdictions provide explicit protections for patients. An exception is Arizona, where employers are prohibited from discriminating against an employee who has tested positive for marijuana and is a registered medical marijuana patient, as long as he or she doesn't have a "safety sensitive" job, such as heavy-machinery operator or airline pilot.
In Colorado, Amendment 20, which legalized medical marijuana in the state in 2000, says that employers are not required to "accommodate the medical use of marijuana in any work place." But the law does not explicitly state whether an employer has the right to fire an employee who uses medical marijuana at home. Coats' supporters believe his case could lead to the elimination of this gray area, and possibly set a precedent for future medical marijuana patients who use the substance outside the office.
"This single court case has the ability to fundamentally change policy both in Colorado and nationally as employers and lawmakers grapple with the legal and moral ethics of firing employees for actions that are completely legal under state law," wrote Brian Vicente, an attorney and author of Colorado's Amendment 64, in an email to HuffPost. Amendment 64 legalized marijuana for recreational use in Colorado in 2012.
Throughout the country, where state medical marijuana laws do not explicitly provide protected status to patients, state supreme courts have upheld companies' decisions to fire employees for their cannabis use outside the office. The highest courts in California, Montana, Washington and Oregon have heard similar cases, and have consistently ruled in favor of the employers. The judges in these cases have said that medical cannabis laws only protect patients from criminal penalties, not from termination by their employers.
Should the Colorado Supreme Court buck the trend and rule in Coats' favor, the decision would be a historic one, likely protecting the more than 100,000 registered medical marijuana users in the state and setting a precedent that could eventually affect millions of patients nationwide.
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