In a landmark decision on Monday, the Colorado Supreme Court decided that an employer is justified in firing an employee for prescribed, medical marijuana use. The employee, Brandon Coats is a quadriplegic who used marijuana to control leg spasms.
His employer, Dish Network, maintains a zero-tolerance drug policy. Although Dish Network does not dispute that Coats was legally prescribed marijuana by a Colorado licensed physician and he only used the drug while off-duty, he was fired in 2010 after failing a random drug test.
Marijuana has been legal for medical use in Colorado since 2000 and for recreational use since 2012. Coats argue that the drug policy was discriminatory under Colorado law. Specifically, the Colorado statute that outlines “Unlawful prohibition of legal activities as a condition of employment,” declaring that:
“It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours…” 24-34-402.5(1), 14 C.R.S. (2014)
In Coats v. Dish Network, the state Supreme Court ruled against Coats, affirming the lower court’s decision and holding that
“under the plain language of…Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”
Pass the Legislation to the Left Hand Side.
Many legal experts contend the court got it right, because its job is to interpret the law, not create new legislation.
By defining “lawful” under both state and federal law, the court avoided the widespread implications of exempting the application of any federal crime that is not mirrored by state law.
Specifically, the decision is precedent setting for any future situation where an employee is fired in Colorado for failing a mandatory drug test.
Because of this ruling, unless the legislature adds a provision that exempts the use of substances that are legal for medical use in the state of Colorado, or marijuana is finally allowed for medical use under federal law, the court’s interpretation will
stand.
Given the nationwide movement to legalize the use of marijuana (see map), in particular for medical use, it might be time to exempt marijuana in the same way that other federally controlled substances are allowed when a valid prescription is provided. For example, most employers will exempt a positive result for amphetamine if an employee proves he has a prescription for the drug, despite the fact that it is undistinguishable from Meth on most drug tests.
Adderall is a Schedule II federally controlled substance (Cocaine is also Schedule II). Marijuana is classified as a Schedule I federally controlled substance, the same as heroin or LSD. On many drug tests, heroin shows up as an opiate, the same as many legally prescribed pain medications. Again, if an employee then provides proof of a prescription for Vicodin or Tylenol 3, the positive result is thrown out.
In light of this ruling, HR professionals may either celebrate the win, or start revising drug use policies. At least with medical marijuana patients, an employer knows exactly what they are dealing with, instead of accidentally employing a heroin addict that got her hands on a prescription for Vicodin.
About the Author: Nicole Greenberg, Esq. serves as Managing Director at STA Worldwide, a global professional services firm specializing in IT staffing, project management and consulting services. A licensed Illinois attorney and member of the American Bar Association, Nicole has over a decade of experience in talent acquisition and recruiting strategy.
Recognized as “the world’s only lawyer with a focus on sourcing,” Nicole is a highly sought after public speaker, presenting on compliance, sourcing and technology topics to industry audiences around the world, and her writing on these subjects has been recently featured by top publications like SourceCon, Recruiting Daily and HRExaminer.
A lifelong native of Chicago, Nicole is a graduate of Lake Forest College and received her Juris Doctor from the John Marshall Law School. Follow Nicole on Twitter @NGSEsq or connect with her on LinkedIn.
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