You Can Still Get Fired for Smoking Pot in Colorado

Posted May 2, 2013 in Marijuana Your Job & The Law by

Marijuana cigarette resting on leaves

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Employees in Colorado can still be fired for testing positive for marijuana, an appeals court ruled last week.

Medical use of marijuana has been legal in Colorado since 2000, and the state legalized the drug outright last year when the electorate voted “yes” on Amendment 64.

However, Brandon Coats found out the hard way that employees can still get the boot for a positive drug test. Coats, a quadriplegic who uses medical marijuana to control muscle spasms, was fired from his job as a telephone operator at Dish Network after the drug turned up in his system.

He went to court to try to get his job back, based on Colorado statute that prohibits employers from firing workers for any “lawful activity” they engage in if it is off the clock and not on the job site. Coats asserted that he was never high at work and only used according to the limits of his medicinal license.

By comparison, if a prescription drug like Xanax turned up in a drug test, an employer almost certainly couldn’t fire an employee for using it under a doctor’s direction, unless it somehow interfered with job performance.

Since his use of medical marijuana is legal under Colorado law, testing positive shouldn’t be a fireable offense, Coats asserted, as it wouldn’t be for any other prescription drug. The state’s total legalization last year appeared to give him an even stronger case.

However, the appeals court didn’t see it that way. Tasked with defining what “lawful activity” means, the court noted that marijuana use is prohibited by federal law and therefore not lawful. “The court simply stated that the plain and ordinary meaning of lawful is that which is permitted by law,” says Elwyn F. Schaefer of the Colorado employment firm Elwyn F. Schaefer & Associates.  “Which doesn’t tell us a whole bunch and is not particularly helpful.”

 

State vs. Federal Law

Attorney Elwyn F. Schaefer headshot

Elwyn F. Schaefer

The court rejected Coats’ argument that it should only consider state and not federal law. There are other activities governed by federal and not state law besides marijuana use, it reasoned, which employees wouldn’t expect a green light to engage in off the job.

“The decision is hugely important for Colorado employers,” according to Emily Hobbs-Wright and Brad Williams on the Employer’s Lawyers Blog. “Amendment 64, like the medical marijuana amendment before it, did not require employers to ‘permit or accommodate’ pot use, and expressly permitted policies restricting such use.”

So for now, employees can still be fired for pot. However, the appeals court decision is almost surely not the last word, as Coats’ attorney has indicated that he will take the issue before the state Supreme Court.

“It is a mess right now,” says Schaefer. “It puts the employer kind of at wit’s end as to what they can do and can’t do.”

With public support for marijuana use quite high, the state Supreme Court could take the popular road and deem it a lawful activity, or they could follow the lower court’s literal definition and uphold the decision allowing employers to fire users.

“It’s an interesting field and keeps us stimulated intellectually,” Schaefer says. “If I were sitting on the Colorado Supreme Court bench I’m not sure what I would do. Will they follow the public will or be strict constructionists?”

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