Pubdate: Tue, 16 Jun 2015
Source: Denver Post (CO)
Copyright: 2015 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Authors: Alicia Wallace and Jordan Steffen

RULING BLOW TO MEDICAL POT USE

Off-Duty Usage Is Still Grounds for Firing

Employers' zero-tolerance drug policies trump Colorado's medical 
marijuana laws, the Colorado Supreme Court ruled Monday.

In a 6-0 decision, the high court affirmed lower court rulings that 
businesses can fire employees for the use of medical marijuana - even 
if it's off-duty.

With the ruling, which was a blow to some medical marijuana patients 
and a sigh of relief to employers, Colorado became the first state to 
provide guidance on a gray area of the law.

The decision came nine months after the state's highest court heard 
oral arguments in Brandon Coats' case against Dish Network. Coats 
became quadriplegic in a car accident and used marijuana to control 
leg spasms. He had a medical marijuana card and consumed pot 
off-duty. He was fired in 2010 after failing a random drug test.

Coats, who was a customer service representative for Dish, challenged 
the Douglas County satellite TV company's zero-tolerance drug policy, 
claiming that his use was legal under state law. His firing had been 
upheld in both trial court and the Colorado Court of Appeals.

When the case went to the state Supreme Court, legal observers said 
the case could have significant implications for employers across 
Colorado. They noted that the ruling also could be precedent-setting 
as Colorado and other states wrangle with adapting laws to a nascent 
industry that is illegal under federal law.

At the crux of the issue was whether the use of medical marijuana - 
which is in compliance with Colorado's Medical Marijuana Amendment - 
was "lawful" under the state's Lawful Off-Duty Activities Statute.

That term, the justices said, refers to activities 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," Justice Allison H. Eid 
wrote in the opinion.

Current Colorado law allows employers to set their own policies on drug use.

Coats' attorney Michael Evans, of Centennial-based The Evans Group, 
called the decision "devastating."

He said he does not plan to take the case to the U.S. Supreme Court.

"You need the Colorado Supreme Court to stand up for its own laws," 
he said. "The U.S. Supreme Court is not going to do that."

Resolution at last

On Monday, Coats and his mother, Donna Scharfenberg, spent all 
morning refreshing the Colorado Supreme Court's website. When they 
finally read the ruling, there was 10 minutes of silence.

"It was just kind of shocking," Coats said. "There was a silent 
moment there for a long while."

It was a disappointing resolution to what has been a five-year battle 
for Coats, who is unemployed.

"This is a controversial issue," he said. "This is a hard case, and 
it was going to be a hard case to win. I was definitely hoping it 
would go the other way around.

"I was feeling like maybe, maybe, but it didn't go that way."

Officials with Douglas County-based Dish lauded the decision.

"We are pleased with the outcome of the court's decision today," the 
company said in a statement. "As a national employer, Dish remains 
committed to a drug-free workplace and compliance with federal law."

Colorado Attorney General Cynthia H. Coffman said the decision gives 
companies the freedom to craft their own employment policies 
concerning marijuana.

"Not every business will opt for zero-tolerance, but it is important 
that the latitude now exists to craft a policy that fits the 
individual workplace," she said.

A question for the legislature

When Colorado legalized recreational marijuana last year, employers 
across the state increased their drug testing, said Curtis Graves, an 
attorney for Mountain States Employers Council, referencing a 
workplace survey at the time. A year later, and with an unemployment 
rate below 5 percent, some employers have loosened the reins.

"We've seen a number of employers, particularly in hospitality ... 
who are actually omitting THC from a pre-employment drug screen," he said.

The market might dictate a further shift in the future.

Until then, people like Coats will have to consider other treatments 
or find a position that does not enforce a zero-tolerance drug 
policy, said Austin Smith, managing shareholder of employment law 
firm Ogletree Deakins' Denver office.

"It puts employees in a tough spot," said Smith, who watched the case 
closely but was not involved.

Sam Kamin, a University of Denver law professor, said the justices' 
decision comes as no surprise.

"It's easy to make too much of this decision," he said. "It really 
comes down to interpreting this one word ('lawful') in this one statute."

As a matter of statutory interpretation, the court got it right, he said.

But for Coats and medical marijuana advocates, this is a blow, Kamin 
said. He said he thinks the state legislature will take up the issue.

"I think (Coats') case is very sympathetic, and I think his case 
would be quite compelling before the legislature," Kamin said.
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MAP posted-by: Jay Bergstrom