Update: The fallout from yesterday's Colorado Supreme Court ruling against paralyzed medical marijuana patient Brandon Coats, who'd challenged his firing by DISH after he failed a drug test (see our previous coverage below), was swift, passionate and divided.
A major business community group cheered the decision, while marijuana advocacy organizations decried it.
Representing the latter is an attorney who seems to have concluded that the Colorado court system will offer no protection to employees like Coats.
The National Federation of Independent Business, which describes itself as "America’s largest small-business association with 7,000 Colorado members," was pleased by the court's determination that Colorado's lawful activities statute encompasses federal as well as state standards — and since cannabis remains illegal at the federal level, DISH had every right to fire Coats.
"We applaud the Court in its decision allowing businesses to maintain a safe environment for their employees and the public,” said Tony Gagliardi, Colorado state director for the organization, in a prepared statement. "It was clearly stated when Colorado approved the use of marijuana for medical purposes that employers were under no obligation to change their current policy on drug use."
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Also weighing in was Karen Harned, executive director of the NFIB Small Business Legal Center. Her statement reads: “Small-business owners rely on drug policies and use them as a crucial tool to protect themselves, their employees and customers, so we are extremely happy the Colorado Supreme Court ruled in DISH Network’s favor. Many employers who use these policies do it because of the safety sensitivity of the job.”
The Colorado Civil Justice League also responded to the ruling in a release sent out under the heading "Colorado Lawsuit Abuse Watch." The CCJL "submitted a friend-of-the-court brief in this case, written by legal advisory board attorney Chris Ottele of Husch Blackwell," the release points out. "The CCJL brief supported the lower courts’ rulings that an activity which is prohibited under federal law is not protected by state law; therefore, DISH Networks should be permitted to enforce its zero-tolerance drug policy."
Much less excited is the National Organization for the Reform of Marijuana (NORML), whose Colorado chapter executive director, attorney Rachel Gillette, offered the following statement:
Drug testing of applicants or employees for marijuana use is bad for business. Commercial drug tests do not measure impairment or job performance. The Colorado workforce today includes countless qualified people like Brandon Coats who use marijuana legally for medicine or as their recreational drug of choice and are not impaired on the job.
Employers should hire or retain qualified people on merit, not the presence of trace metabolites in their bodily fluids. If any testing is to be done for risk management, NORML urges Colorado employers to use currently-available impairment testing based upon reasonable suspicion that are specific for the job description.
Colorado law provides that it is a discriminatory or unfair employment practice to terminate an employee for lawful activity during nonworking hours. Marijuana is legal in Colorado for both medicinal and recreational use under our Constitution. The Supreme Court unfortunately did not respect the will of Colorado voters. Until federal law is changed, it will be up to the Colorado legislature or local governments to act to protect otherwise law-abiding citizens who use marijuana.
Since 1989, the City of Boulder has banned random drug testing by private employers. Testing can only be done for finalist candidates, or if there is individualized reasonable suspicion, based on specific, objective, clearly expressed facts, to believe that the employee is under the influence on the job, or his or her job performance is currently adversely affected. A state law such as this, with an added requirement for actual impairment testing, would protect Colorado workers from discrimination based upon their lawful off-job use of marijuana.
For many, Gillette's key sentence is this one: "Until federal law is changed, it will be up to the Colorado legislature or local governments to act to protect otherwise law-abiding citizens who use marijuana." It remains to be seen if a legislative fix is possible at the state level either technically or politically, given the presumed opposition of influential, well-funded business groups.
Continue to see our previous coverage, including the Colorado Supreme Court's ruling.
Original post, 10:01 a.m. June 15: In 2012, as we've reported, Brandon Coats, a paralyzed medical marijuana patient fired by DISH for failing a drug test, filed a complaint over the issue in Arapahoe District Court. When he lost there, attorney Michael Evans brought the case to the Colorado Court of Appeals, where jurists also rejected Coats's argument. Evans, though, wasn't ready to give up. He subsequently submitted what he described to us as a final document in an effort to get the Colorado Supreme Court to take on the matter — and in January 2014, the jurists agreed to do so.
But the ruling being made public today (and on view below) isn't the victory for which Evans and Coats hoped.
The court held that under 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."
Before we drill deeper into the decision, here's some background.
Coats, who's in his thirties, is paralyzed over 80 percent of his body. At age sixteen, he was a passenger in a vehicle that crashed into a tree.
Since then, Coats has used a wheelchair to get around, but he's fully capable of working — and in 2007, he was hired by DISH as a customer service representative. Over the years that followed, his original lawsuit contends that prescription medicine Coats took to treat involuntary muscle spasms began to fail. When searching for a way to deal with these symptoms, his physicians recommended that he supplement his regimen with medical marijuana. He received his state-issued license for MMJ in August 2009 and found that cannabis helped alleviate his spasms. However, the complaint stresses that he never used marijuana at his job during work hours or anywhere on the company's premises.
In May 2010, Coats was ordered to take a random drug test. He's said to have told the employee administering the test that he was an MMJ patient, but this wasn't taken into account when he registered a positive for THC. The agent who broke the news allegedly told him that his status as a patient didn't matter: "That is just Colorado state law and does not apply to your job." Two weeks later, Coats was fired for violating the company's drug policy.
Evans took DISH to court, arguing that Coats's activities were constitutionally protected. But in February 2012, Araphaoe District Judge Elizabeth Beebe Volz granted DISH's motion to dismiss. Among the cases she cited to justify this ruling was one involving Jason Beinor, a medical marijuana patient sacked from his street sweeping job after failing a drug test.
In the wake of more judicial machinations, the Coats case reached the Colorado Court of Appeals. But in a 2-1 decision, the court sided with DISH. The majority decision, written by Judge Janice Davidson, is summarized like so:
The primary question before us is whether federally prohibited but state-licensed medical marijuana use is "lawful activity" under section 24-34-402.5, C.R.S. 2012, Colorado's Lawful Activities Statute. If it is, employers in Colorado would be effectively prohibited from discharging an employee for off-the-job use of medical marijuana, regardless that such use was in violation of federal law. We conclude, on reasoning different from the trial court's analysis, that such use is not "lawful activity."
The bottom line: Because marijuana remains against federal law, employers can use that standard rather than state law as a rationale for banning worker use even off the job.
Quizzed after this ruling, Evans said, "This was a hard decision, because there are a lot of competing interests. So I think they did what was safe. And I also think there's one level above them.
"That's what happens a lot of the time. Trial judges and then Court of Appeals judges may side on the conservative side with an abundance of caution and let somebody else take the risk — like the Colorado Supreme Court. If anyone is going to tell the federal government that state law is going to prevail in this case, it's going to be the Colorado Supreme Court."
Things didn't work out that way. Indeed, the Colorado Supreme Court wound up concurring with the logic employed by Judge Davidson at the Colorado Court of Appeals.
"By its terms," the ruling states, "the statute protects only 'lawful' activities. However, the statute does not define the term 'lawful.' Coats contends that the term should be read as limited to activities lawful under state statute. We disagree.
"We find nothing to indicate that the General Assembly intended to extend section 24-34-402.5’s protection for lawful activities to activities that are unlawful under federal law," the authors continue. "In sum, because Coats's marijuana use was unlawful under federal law, it does not fall within section 24-34-402.5’s protection for 'lawful' activities."
Presumably, then, DISH's actions would only have been illegal had the statute specified that workers are protected for activities that are legal under state law even if they're illegal under federal law.
Here's an excerpt from attorney Evans's release about the decision.
Although naturally devastating for us, the silver lining of this case, and why it was so important to be litigated by Mr. Coats and his attorney Michael Evans for over 5 years against such an ominous opponent, is that there was previously no clear definition on what an employer and employee could do when it came to MMJ. It was a very scary ‘gray’ area for both sides. All of that hard work and risk put into this case was not a waste, because at least now there is clear communication for everyone on that issue from the Court.
Notably, the Court issues this decision after the legislative session had ended — indicating they may have been waiting (due to the separation of powers) for the CO House or Senate to act and fix the obvious problem. The Court will not make new law, they will only interpret the Colorado’s constitutional and statutory MMJ laws as written. Today’s decision means that until someone in the House or Senate champions the cause, most employees who work in a state with the world’s most powerful MMJ laws will have to choose between using MMJ and work. (MMJ’s one downside is that the inactive, non-impairing “residue” called THC-COOH or carby THC stays in the system for up to 45 days and only a specific blood test like the one used for years by police for DUI-D cases will determine actual impairment based on type & amount of THC.) Brandon Coats did not receive such a test by DISH, only a yes/no test on whether THC was present.
For people like Brandon Coats, there really isn’t a “choice," as MMJ is the only substance both he and his CO licensed physicians know of to control his seizures due to his quadriplegia. He has to have it.
Brandon Coats quote: “Although I’m very disappointed today, I hope that my case has brought the issue of use of medical marijuana and employment to light. If we’re making marijuana legal for medical purposes we need to address issues that come along with it such as employment. Hopefully views on medical marijuana — like the ones in my specific case — will change soon.”
The Cannabis Therapy Institute, an organization that has long warned about the legal jeopardy in which medical marijuana patients are placed by Colorado law, has issued a passionate statement about the ruling, with references to Amendment 20, the 2000 measure that legalized medical marijuana in Colorado, and Amendment 64, the 2012 proposal that sanctioned limited recreational marijuana sales. The statement reads:
This is a sad day for Colorado medical marijuana patients, who have now have no protection for off-duty use of medical or recreational marijuana. Amendment 20 and Amendment 64 were both written by the Marijuana Policy Project, a Washington, D.C.-based lobbying group. Medical marijuana activists have been complaining for years that these laws were poorly written and that they give a false sense of security to anyone that relies on them. The blame for this failure clearly goes to MPP, the authors of Amendment 20. If they had wanted to create stronger rights for patients in Amendment 20, they could easily have done so. Instead, they included no rights for patients in A20, so patients had to rely on Colorado's Lawful Off-Duty Activity Statutes to protect them. Now that this protection has failed, patients have no protection for their use of medical marijuana as far as employment goes. The lesson is — just because a ballot initiative purports itself to be in favor of patients or "legalization" of medical marijuana, doesn't mean that it actually protects patients. MPP has always been more concerned with putting profits over patients, and this Supreme Court decision proves that.
Mason Tvert, an Amendment 64 proponent who's now the communication director for the Marijuana Policy Project, takes issue with virtual every syllable of this broadside. For one thing, he says that while MPP "might have weighed in on Amendment 20, it wasn't the sponsor or leader of it," and he questions whether any language in it or Amendment 64 would have prevented the Supreme Court from ruling as it did.
More generally, he adds, "Their statement demonstrates a lack of understanding of both the law and of Colorado's electorate and political process. Today's ruling stems from marijuana being illegal under federal law. If this group wants to live in a world where marijuana continues to be illegal for medical and adult use in Colorado, that's their prerogative. But the vast majority of Coloradans support our laws and want to improve upon them.
"It's unfortunate that these folks are directing their time and energy toward picking fights and spreading misinformation instead of actually working to bring about the changes they wish to see. We're not going to spend our time fighting with them. We're going to spend our time trying to make Colorado's laws the best they can be."
Here's the Colorado Supreme Court's decision.
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