Not surprisingly, the positivity rates of drug tests have increased in the Colorado workplace since the adoption of Amendment 64. What has surprised many employees, however, are the pink slips they’ve received following the positive tests.
Attorney Rachel Gilette, executive director of the Colorado Chapter of National Organization for the Reform of Marijuana Laws reports, “I get calls almost every day from people who were fired for off-the-job use of legal or medical marijuana.”
In 2010, medical marijuana patient Brandon Coats, a quadriplegic, was fired from his job at Dish Network after failing a drug test, effectively violating the compan’s drug policy.
When Coats was a teen, he was involved in car crash that paralyzed more than 80 percent of his body. Ever since the accident, he has suffered from involuntary muscle spasms and seizures. Coats told the Huffington Post, “My spinal card is broke, so messages don’t get back and forth from my brain to my body. My legs still work, but they just can’t get the signal. Sometimes my whole body can just seize up.”
To manage the pain and seizures, Coats first began to medicate with prescription pain killers. But like with most chronic pain sufferers, he developed a tolerance to the drugs and their efficacy diminished. At the recommendation of his doctors, Coats turned to medical marijuana for relief.
By smoking a small amount of marijuana every evening, Coats saw tremendous improvements in the frequency of his seizures and severity of his discomfort.
So when Coats was called in by his supervisors at work for a random drug screening, he knew he would most likely test positive for marijuana as he had medicated just the night before. Still, he wasn’t too concerned by possible ramifications of a failed drug test for he had been a patient on Colorado’s state medical marijuana registry since 2009.
Unfortunately for Coats, Dish Network holds a strict zero-tolerance drug policy. The policy reads,
To ensure a safe and productive work environment, Dish Network reserves the right to administer nondiscriminatory, unannounced random drug testing. No employee shall report to work of 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.
Coats was fired from his customer service job and is now suing Dish Network for wrongful termination; his case was recently reviewed by the Colorado Supreme Court.
“We’re not pushing for use at work,” says Coats’ attorney, Michael Evans. “We’re pushing for, if you’re in the privacy of your own home, you’re registered with the state and abiding by the constitutional amendment, is that an OK reason for your employer to fire you?”
Coats and his attorney claim his off-the-clock medicating should be protected by Colorado’s Lawful Off-Duty Activities Statute. The law prohibits companies from terminating employees for engaging in lawful activities-such as drinking alcohol or smoking cigarettes-outside the business premises during nonworking hours. But Dish argues that marijuana use, medical or recreational, can’t be considered lawful since it’s still categorized as a Schedule I substance and remains illegal under federal law.
“When you look at [Colorado’s] medical marijuana act, there is nothing in that statute that says that this is lawful activity,” argues Dish Network attorney Meghan Martinez. “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.”
In a brief written by the state attorneys general office it says, “Contrary to popular perception, Colorado has not simply legalized marijuana for medical and recreational purposes. Instead, its citizens have adopted narrowly drawn constitutional amendments that decriminalize small amounts of marijuana.”
Simply, Colorado’s medical marijuana amendment did not establish pot use as a constitutional right. Rather, it clearly states “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace.” But the amendment still does not explicitly give an employer the right to fire an employee who uses medical marijuana in the privacy of his or her home.
Because of this, employees, employers, and even the Colorado Supreme Court justices remain confused. In a Denver Post article, Justice William Hood is reported saying “just because the off-duty activities statute doesn’t mention federal law doesn’t mean the legislature didn’t intend for it to be considered.”
“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,” attorney and author of Colorado’s Amendment 64 Brian Vincente wrote to the Huffington Post.
The Supreme Court’s decision will essentially affect the 100,000 registered marijuana users in the state and set the precedent for the millions of recreational users nationwide.
The Justices are expected to issue a written opinion and their final ruling later this year.