DENVER — Medical and recreational marijuana may be legal in Colorado, but employers in the state can lawfully fire workers who test positive for the drug, even if it was used off duty, according to a court ruling today.
The Colorado Court of Appeals found there is no employment protection for medical marijuana users in the state since the drug remains barred by the federal government.
“For an activity to be lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law,” the appeals court stated in its 2-1 conclusion.
The ruling concurs with court decisions in similar cases elsewhere and comes as businesses attempt to regulate pot use among employees in states where the drug is legal. Colorado and Washington state law both provide for recreational marijuana use. Several other states have legalized medical use. Police departments have been especially concerned since officers are sworn to uphold both state and federal laws.
The Colorado case involves Brandon Coats, 33, a telephone operator for Englewood, Colo.-based Dish Network LLC. Coats was paralyzed in a car crash as a teenager and has been a medical marijuana patient in the state since 2009.
He was fired in 2010 for failing a company drug test, though his employer didn’t claim he was ever impaired on the job.
Coats sued to get his job back, but a trial court dismissed his claim in 2011. The judge agreed with Dish Network that medical marijuana use isn’t a “lawful activity” covered by a state law intended to protect cigarette smokers from being fired for legal behavior off the clock. According to the National Conference of State Legislatures, more than half of all states have such laws.
Dish Network did not return a call seeking comment.
Coats’ attorney, Michael Evans, issued a statement saying the ruling has wide implications for Colorado marijuana laws.
“This case not only impacts Mr. Coats, but also some 127,816 medical marijuana patient-employees in Colorado who could be summarily terminated even if they are in legal compliance with Colorado state law,” Evans noted.
Evans plans to ask the state Supreme Court to review the case.
Morgan Fox, spokesman for the Marijuana Policy Project in Washington, called it a setback.
“It’s unfortunate, considering how much support there is for medical marijuana, that employers don’t see this like any other medication,” Fox said.
The Marijuana Policy Project said the ruling appears to be limited to state law because it does not fall under the federal Americans with Disabilities Act.
Judge John Webb dissented in the split decision, saying he couldn’t find a case addressing whether Colorado judges should consider federal law in determining the meaning of a Colorado statute.
Marijuana supporters say the courts are discriminating against them because Colorado’s Lawful Off-Duty Activities law protects workers being fired for legal behavior off the clock, citing cigarette smoking as a protected activity.
The court said lawmakers could act to change the law to protect people who use marijuana, but there have been no plans to do that at the state Capitol.
Colorado’s amendment legalizing recreational marijuana doesn’t give people a constitutional right to smoke pot and doesn’t protect users from criminal prosecution, from being fired or from other negative consequences. Backers said smoking off the job was a gray area and warned people to be familiar with their employers’ drug policies.
The Washington state Supreme Court also has found that workers can be fired for using marijuana, even if authorized by the state’s medical marijuana law.
Last year, a federal appeals court ruled against a cancer survivor in Battle Creek, Mich., who was fired from his job with Wal-Mart Stores Inc. after failing a drug test for marijuana. Joseph Casias had a medical marijuana card and said he used pot to alleviate symptoms of an inoperable brain tumor.
According to the Marijuana Policy Project, the California Supreme Court also has ruled that people could be fired for testing positive for marijuana. The Legislature passed a bill to change that in 2008, but it was vetoed.
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