Monday morning saw a Colorado Supreme Court decision that was fairly limited in scope. The problem is, it could have very wide-reaching consequences.
In a 6-0 decision, the court issued a ruling that upheld the lower court’s decision to affirm the firing of a Dish Network employee for using medical marijuana off-duty. For those familiar with employment law, the case might not be a huge surprise. But for employees who use medical marijuana it might be a major jolt.
35-year-old Brendan Coats, who is quadriplegic, was prescribed medical cannabis to help manage his violent spasms and seizures he’s suffered from since he was paralyzed in a car accident. And though he has never been high on the job, received “high praise” for his job performance, and lives in a state where recreational and medical marijuana is legalized, Coats was fired from his position at Dish Network after failing a drug test in 2010.
The problem, as the courts have seen it so far, is that medical marijuana isn’t protected under the state’s Lawful Off-Duty Activities Statute, which the justices said refers to activities lawful under both state and federal law.
“I don’t blame the Colorado State Supreme Court, who are suffering the consequences of having to follow federal drug laws,” said Bricken, who notes, the ruling itself is not so much about medical marijuana as it is about abiding by federal law. “It’s a preservation of the status quo. They won’t accommodate federally illegal activity, and they are absolutely entitled to zero tolerance policies.”
But that doesn’t leave much solace for medical marijuana patients. Though there are jobs that will let you go if you, say, smoke cigarettes or even drink alcohol off-the-clock, medical cannabis is still a tricky issue for those that require it. Though it’s protected in many states, it’s unrecognized at a federal level—and lawmakers often actively avoid it—leaving it in a loophole that other prescription drugs aren’t.
Of course since 2009 they’ve generally turned away from pursuing medical marijuana patients, as then-Deputy Attorney General David Ogden wrote in a memo to U.S. attorneys:
As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.
But just like how you can’t define something by what it’s not, you can’t really protect something just by not giving it legal consequences. Coats’ case not only shows that medical cannabis is still not seen as legitimate medicine, but can now be an impediment to employment for some. Even recreational marijuana users in Colorado or Washington could be effected be affected, as Karen Sutherland of ILN Today noted when Washington’s I-502 was passed:
Just because something is legal does not mean that employers are required to allow it. The text of I-502 does not prohibit employers from having policies limiting or prohibiting marijuana possession or use. The relevant portions of the new law decriminalize certain aspects of possession and use under state law, but there is nothing in I-502 that would prohibit an employer from having rules about intoxication, possession and/or use of marijuana just like employers can limit other legal substances, such as by prohibiting the consumption of alcohol or being under the influence of alcohol during work hours, or by prohibiting employees from using tobacco products.
The ruling, though it makes sense on an employment law level, could have broader consequences for employees who engage with medical (or decriminalized) marijuana, given that that this is the first major guidance on the issue.
“With this, employers may be concerned that if they acquiesce to this activity, the effects of it would be bad, both in terms of reputation and federal grants. If I’m Boeing I might be concerned about losing a federal contract, or jeopardizing the relationship there,” said Bricken. “As far as these employers are concerned if they have a zero tolerance policy in the workplace [job performance] is immaterial to them…even for medical use there really is no escaping the fact that you can still lose your job because it’s federally illegal.”
And if this case were being decided by the Supreme Court she believes it would’ve gone the same way. Short of a change in how the federal government recognizes medical cannabis (which depending on who you talk to could come down to the next President or a massive effort to rewrite the Federal Controlled Substances Act) Bricken isn’t anticipating much help for employees.
“What this decision stands for is that it is that your job performance is immaterial if you test positive for active or inactive THC. Given that Mr. Coats was a medical marijuana user, this tells me that for recreational users you really have zero grounds on which to stand on these lawful intolerence policies,” said Bricken. “And now employees who use medical cannabis will really have to choose between employment and medicating.”