Recreational marijuana smoking a firing offense? Colorado Bar Association says "yes"
The folks at the Colorado Bar Association have weed on their mind. For the December edition of its "Legal Lines" column, the CBA considered whether marijuana attorneys are violating professional ethics by representing clients who break federal law (even if what they're doing is perfectly fine in Colorado).
Now, "Legal Lines" is tackling the question, "Can I lose my job over recreational marijuana use?" The answer: an emphatic yes -- although that could change.
The column notes that many companies have zero-tolerance policies in regard to drugs, including marijuana. As a result, selling, distributing or consuming pot on a job site will be seen by such firms as a firing offense.
"But what about just having it in your system when at work?" the column asks. "What if you used it the night before, or the month before, and it's still in your system when you are drug-tested?"
To answer this question, "Legal Lines" cites the case of Brandon Coats, a paralyzed medical marijuana patient who is suing DISH, where he worked as a customer service representative, after he was fired in 2010 for failing a drug test.
The suit was filed in 2012, and since then, a number of courts have ruled against Coats. But in January, the Colorado Supreme Court agreed to hear the case.
Coats' complaint stresses his status as a patient who needs marijuana for pain relief, not a recreational user lighting up for fun. Yet the "Legal Lines" column implies that a ruling in the case could affect recreational users, too.
Problem is, the column argues that the most recent court decision against Coats "is consistent with precedent and finds its roots in the undisputed principle that marijuana was and remains a federal controlled substance, even in states like Colorado that have now passed not only medical but recreational marijuana laws."
As such, the CBA emphasizes that "you clearly can lose your job because of marijuana use" -- but "this could eventually change, as a decision from the Colorado Supreme Court is expected later this year."
Consider that professional legal advice, provided at no charge.
Legal Lines: Recreational Marijuana Laws
Question: "Can I lose my job over recreational marijuana use?"
Answer: Yes, you can lose your job because of the use, possession, sale or distribution of marijuana on the job.
While companies can choose to have different policies, many of them choose to have a "zero tolerance" policy. Many companies have zero tolerance for employees who sell or distribute marijuana at the worksite, and many have policies stating that possessing it on the job is also grounds for discharge. Likewise, you might assume that using it on the job, even on breaks, can get you fired. But what about just having it in your system when at work? What if you used it the night before, or the month before, and it's still in your system when you are drug-tested?
That's a question that Brandon Coats learned the hard way. Coats was a medical marijuana user, who, according to the facts laid out in a recent decision by the Colorado Court of Appeals, Coats v. Dish Network LLC, had never used marijuana while at work. Still, he came up positive on a drug test and was discharged. The Colorado Court of Appeals held that nothing in Colorado's medical marijuana statute gave him a right to use marijuana, at least not as to his employer. Rather, Colorado's medical marijuana laws create a limited exception to criminal enforcement. On Jan. 27, 2014, the Colorado Supreme Court agreed to hear an appeal of Coats' case. While some lawyers think the Court of Appeals got it wrong, and indeed one judge dissented, the decision is consistent with precedent and finds its roots in the undisputed principle that marijuana was and remains a federal controlled substance, even in states like Colorado that have now passed not only medical but recreational marijuana laws. Colorado's medical and recreational marijuana laws have language saying they do not apply to employers, and while some attorneys believe that language should be read more narrowly than the Court of Appeals has, however it is read, whatever Colorado law might say, it remains federal law that marijuana is a criminally controlled substance.
So at this point in time, you clearly can lose your job because of marijuana use. This could eventually change, as a decision from the Colorado Supreme Court is expected later this year.
The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. To submit general legal questions to the CBA, please e-mail Courtney Gibb at firstname.lastname@example.org.
About Legal Lines Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.
About the Colorado Bar Association The Colorado Bar Association is a voluntary bar association with more than 18,000 members -- almost three-quarters of all attorneys in the state -- founded in 1897. The bar provides opportunities for continuing education, volunteering and networking for those in the legal profession while upholding the continuing education, volunteering and networking for those in the legal profession while upholding the standards of the bar. The bar likewise works to secure the efficient administration of justice, encourage the adoption of proper legislation and perpetuate the history of the profession and the memory of its members. For more information, visit cobar.org.
Send your story tips to the author, Michael Roberts.
More from our Marijuana archive circa December 2013: "Marijuana: Are attorneys who deal with pot violating professional ethics?"
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