Pubdate: Thu, 18 Jun 2015
Source: Detroit Free Press (MI)
Copyright: 2015 Detroit Free Press
Contact: http://www.freep.com/article/99999999/opinion04/50926009
Website: http://www.freep.com/
Details: http://www.mapinc.org/media/125
Author: Brian Dickerson

POTHOLES LOOM ON ROAD TO LEGAL MARIJUANA

Would you smoke marijuana if it were legal?

Backers of two rival ballot initiatives to decriminalize the
cultivation, purchase and use of marijuana are betting that a
significant percentage of Michigan adults a=C2=80" at least 12% a=C2=80" 
would,
generating upwards of $200 million a year in tax revenue once the
state has established the ground rules for a legal market.

But what if you knew your employer could fire you for having chemical
traces of marijuana in your bloodstream a=C2=80" even if you used it only

on your own time, and in your own home?

Related: Marijuana legalization could be on 2016 ballot

It's a question those hoping to legalize recreational marijuana in
Michigan will have to confront in the wake of the Colorado Supreme
Court's unanimous ruling that employers in their state may dismiss
employees who smoke pot off the job, even if a physician has
prescribed its use.

In a case employment lawyers throughout the country have been
following closely, Colorado's highest court concluded this week that
Dish Network was within its rights when it fired Brandon Coats, a
customer service worker, in 2010 after he tested positive for
marijuana in a random drug test.

Colorado became the first state to authorize the personal use of
marijuana in 2012. Three other states have since followed suit, and
voters in another dozen, including Michigan, are likely to take up
similar decriminalization initiatives in or before 2016.

Michigan is also one of 23 states that allow medical marijuana,
approved by voters in 2008, although legislators here have so far
failed to agree on a way to facilitate its cultivation and
distribution. Although federal law continues to prohibit all marijuana
use, the Justice Department has largely abandoned enforcement efforts
in states that have decriminalized it.

Related: Workers can be fired for using pot off-duty, court rules

No refuge

Coats, who uses medical marijuana to alleviate the chronic pain he has
experienced since an automobile accident left him paralyzed,
challenged his dismissal in court, citing a Colorado law that
specifically prohibits employers from firing workers for "any lawful
activity" they pursue away from home.

But Colorado justices said the federal government's continuing
prohibition of marijuana meant that its use remains unlawful, even
though their state has decriminalized it.

"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 (Colorado employment) statute," Justice Alison Eid
wrote in an opinion for the 6-0 majority.

Michigan employees beware

Deborah Gordon, a labor law specialist in Bloomfield Hills, says she
believes Michigan medical marijuana users in Coats' circumstances are
protected by a law that requires employers to make reasonable efforts
to accommodate the medical needs of qualified employees.

If a worker needs medical marijuana to manage a medical condition and
using the drug doesn't interfere with his work, Gordon argues, his
employer should be enjoined from enforcing a work rule that would
otherwise justify the dismissal of any employee who tests positive for
marijuana.

Related: How a sticky note helps Holly woman fight marijuana rap

But even if medical users were protected from dismissal, she conceded,
it's not clear that legalizing marijuana on the state level would
protect workers in Michigan from reprisals by disapproving employers.

It's even harder to imagine that a group as deferential to employers
as the current state Legislature would intercede on workers' behalf.
If you want a preview of how lawmakers might react to a ballot
initiative to legalize recreational use, consider how legislative
foot-dragging has constrained the orderly development of the medical
marijuana market. Or the adamant opposition of Michigan Attorney
General Bill Schuette; although voters made medical marijuana legal in
2008, Schuette has become a bitter foe, declaring dispensaries illegal
in 2013 and prompting a wave of police raids.

You don't need a crystal ball to understand that champions of
legalized pot have achieved critical momentum. State governments are
too desperate for revenue, and recreational users too rich a potential
source of it, for prohibitionists to hold the line much longer.

Absent the discovery of some previously undisclosed health hazard,
marijuana is virtually certain to become more widely available, and
its users more rarely the targets of criminal prosecution, in the
decade ahead.

But prohibitionists still have plenty of ways to register their
disapproval of the way the issue is playing out. And until conflicts
between state and federal law are resolved once and for all, they'll
likely make marijuana users pay a price for their newly won
privileges.
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