Pubdate: Tue, 28 Jan 2014
Source: Denver Post (CO)
Copyright: 2014 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: John Ingold
Page: 1A

"BIG DEAL" POT CASE

Court Will Review a Worker's Firing Over After-Hours Weed Use.

In a move that could have major impacts for how employers treat
marijuana use by workers, the Colorado Supreme Court on Monday
announced it will review the case of a fired medical marijuana patient.

The patient, a quadriplegic man named Brandon Coats, lost his job for
using marijuana off the clock. But, in taking up the case, the Supreme
Court announced it would look not just at whether a special Colorado
law that protects legal off-the-clock activities covers marijuana. For
the first time, the court announced it will also look at whether
Colorado's constitution gives medical marijuana patients a right to
cannabis.

Colorado's Court of Appeals has previously ruled that patients don't
have a right to use marijuana and that employers can fire workers for
any marijuana use.

"This is a big deal," said Vance Knapp, a Denver lawyer who
specializes in employment issues. "If the Supreme Court were to
reverse, that would send major ripples through the business community
in Colorado. There are multiple employers who have zero-tolerance policies."

Because the questions are so similar, the Supreme Court ruling in
Coats' case would also have implications for recreational marijuana
use. But Knapp said Colorado's constitutional provision legalizing
recreational marijuana has slightly different wording than the medical
marijuana provision, meaning the case's ripples only go so far.

Sam Kamin, a University of Denver law professor, said a Colorado
Supreme Court ruling also won't settle the national debate over
state-legal marijuana use and employment. But, in a state that has
become the country's foremost marijuana-policy petri dish, Kamin said
the eventual decision will draw national attention.

"It's an issue that's going to recur, and the Supreme Court wanted to
make sure we had an answer to it," Kamin said.

Coats was a telephone operator at Dish Network when he was fired in
2010 after he tested positive for marijuana. There was no allegation
that Coats was stoned on the job, and his attorney said Coats had an
exemplary employment record.

Instead, Dish Network said company policy prohibits employees from
using marijuana-even if it is legal under Colorado law and done
off-duty. Coats challenged his dismissal under the state's Lawful
Activities Statute, the law preventing employers from firing workers
for doing legal things in their off-hours.

The Colorado Court of Appeals upheld Coats' firing in a divided
decision last April, reasoning that things that are illegal under
federal law-like marijuana use - can't be considered "lawful."

In 2011, the Court of Appeals ruled in a different case involving a
fired worker that medical marijuana patients don't have a right to
marijuana. The Supreme Court declined to review that case - a sign
that it agreed with the ruling. But, in its announcement Monday, the
state's highest court said it would make a full review of both issues.

The move was cheered by marijuana advocates, who said the Supreme
Court might be more inclined to give protection to marijuana users
after Colorado voters endorsed marijuana legalization in 2012.

"We're excited by the prospect of the Supreme Court having a more
reasonable take on this issue," said advocate Brian Vicente.

But Curtis Graves, a staff attorney for the Mountain States Employers
Council, said the Supreme Court might also choose to affirm more
strongly the Appeals Court's decisions, cementing the current status
quo.

If the Supreme Court did reverse the lower court's rulings, employers
would be forced to determine whether workers' marijuana use is
impacting their job performance before firing them. Graves said that
would be difficult because currently only a blood test can show active
marijuana levels.

"It would be much easier if we had a drug test that showed present
impairment," Graves said. "But it's not that easy."

Lawyer Knapp said the Supreme Court probably won't hear oral arguments
on Coats' case until the summer, with a decision issued later in the
summer or early in the fall.
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