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Should You Be Fired for Smoking Weed Off-Hours? This Bill Says No.

Should You Be Fired for Smoking Weed Off-Hours? This Bill Says No.EXPAND
Jacqueline Collins

Amendment 64, the ballot initiative that voters approved in 2012 to legalize recreational weed in Colorado, says that "marijuana should be regulated in a manner similar to alcohol," but that hasn't made the plant equal to alcohol in the eyes of many employers. At companies across Colorado, testing positive for marijuana is still legal grounds for dismissal, even if your employer acknowledges that you weren't high on the job.

Over seven years after Coloradans legalized marijuana, state lawmakers may finally be ready to address the issue this year. Introduced by Representative Jovan Melton (D- Aurora), House Bill 1089 "prohibits an employer from terminating an employee" for "lawful off-duty activities," even if those activities are illegal under federal law.

Melton, who sponsored bills for new medical marijuana conditions and legalizing social consumption in previous legislative sessions, says the cause was easy to get behind after cannabis activists at the Colorado branch of the National Organization for the Reform of Marijuana Laws approached him before the beginning of the 2020 session, and shared the story of Brandon Coats. A paralyzed medical marijuana patient, Coats was fired from his job at DISH Network in 2012 after testing positive for medical marijuana. He sued DISH over the firing, arguing that he was never under the influence at work. The company didn't argue against Coats's claim, instead pointing to a Colorado law that says the term "lawful" refers only to activities that are legal under both state and federal law.

The Colorado Supreme Court eventually agreed with DISH in 2015, ruling that companies could fire employees for legal, off-duty marijuana use, because it isn't clearly defined as lawful under state law.

"I can't believe we've had this much oversight and lack of protection for someone who's using medical marijuana, or recreational, which is something that is legal in Colorado," Melton says. "Especially since we're supposed to regulate marijuana just like alcohol. But [alcohol users] are not in the same type of jeopardy as someone who's using marijuana. I feel like it's kind of almost discriminatory to say someone can drink alcohol but not smoke here."

According to Melton, his bill would shield employees from being fired for off-hour pot use under the same law that provides protection to alcohol and tobacco consumers. Under the proposed measure, if an employer fired a worker for marijuana use outside of working hours, that employer could be sued, he notes, adding that national business chains with operations in states where marijuana is illegal would be subject to the law, too. Employees who work under federal guidelines, such as airline pilots or postal workers, wouldn't be able to use the law as protection from being fired, however.

If, in the future, the State of Colorado decides to legalize something else that is currently illegal — magic mushrooms, for example — the bill's language as written would protect them, as well, Melton points out. "We're really not creating a new law. This law has been on the books when it comes to alcohol and tobacco use; we're just expanding," he explains. "The way it's written now, it's broad enough to cover anything the legislature would legalize in the future. We didn't want a future legislature to come back and revisit this when they legalize something else."

Melton has already received support for the bill from fellow Representative Jonathan Singer (D-Longmont), but will likely face opposition from organizations representing business owners. The National Federation of Independent Business publicly praised the Supreme Court's ruling in 2015, calling drug policies a necessary means of employer protection, while the Colorado Chamber of Commerce just told the Denver Post that it will likely oppose the bill based on feedback from members. Melton says he's set to meet with several business groups to talk about the bill this week.

Colorado NORML has pushed for legislation addressing employee rights in regards to off-duty marijuana use for over five years, but this is the first time it's gotten a bill introduced. Director Ashley Weber believes support for the measure will come largely from medical marijuana and cannabis activist organizations such as Canna-Patient Resource Connection, Safe Access Colorado and the Southern Colorado Cannabis Council, but thinks Republican lawmakers should support it as a state's rights issue, as well.

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"We've revised the language a little, and it's now about employee protection for lawful activity," Weber says. "We're not really looking for any special treatment just for cannabis users...We offer these protections for alcohol, so we're not asking for any special treatment."

Colorado wouldn't be the first state to protect marijuana use as legalization spreads, Weber adds. Nevada's state legislature passed a law last year that bans pre-employment marijuana tests, as does New York City. In 2017 the Massachusetts Supreme Court saw a similar case to the that of Coats' but ruled in favor of the medical marijuana patient, agreeing that using medical marijuana — the only legal form of marijuana in Massachusetts at the time— off the job wasn't grounds for dismissal.

"Our hope with this bill is that Colorado will set an example in rewriting employee handbooks about how they're going to treat the firing of their employees, and what is grounds for being able to be fired," Weber says. "We can't go back and undo what has already been done, but we can move forward in how were creating this language."

The bill's first hearing is set for February 5 with the House Business Affairs and Labor Committee, according to Melton.

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