|Colorado Supreme Court chambers.|
The Colorado Supreme Court will hear arguments tomorrow on whether or not employers should be able to fire employees for using cannabis off-work. The case stems from Brandon Coats, a former DISH Network phone operator who was fired from his job in 2010 after he failed a test for marijuana. Coates, who was left in a wheelchair for life after a car accident as a teen, says he only uses the cannabis off work and that his employer fired him inappropriately.
Colorado business officials and the state Attorney General’s office have come out in support of DISH’s decision, but a group of vocal Colorado advocates have jumped in on Coates’ side and are imploring the courts to decide for patients and not for big business interests.
“I use marijuana at nighttime, and just a little bit gets my spasms to where my body’s not going out of control,” he told Colorado Public Radio this week. “There’s a lot of people out there like me who would like to have a job but cannot, because their impairment requires them to use marijuana, and because marijuana’s looked down on for employment, they’re not able to get jobs.”
At the center of the debate is a line in Colorado’s Amendment 20, which gave medical marijuana patients an affirmative defense in court to possess up to two ounces of herb and grow up to six plants at home, but does not “require any employer to accommodate the medical use of marijuana in any work place.” Colorado’s recreational cannabis amendment includes similar language.
Pro-business lobbyists and state officials claim that the language give them the ability to not allow employees to use otherwise-legal cannabis off-work. That, they say, is needed to meet federal anti-drug workplace laws. But activists argue the line specifically means that employers are allowed to prevent from using cannabis while still at work.
Lara Makinen, a board member with the Colorado chapter for the Society of Human Resources Management, says that allowing employees the ability to puff off work would create a snowball effect and soon Colorado will be overrun with a stoned workforce.
“Especially in jobs that have high safety standards, physicians, operating machinery… we have to be able to say as an employer, you have to come here clean and clear-headed,” Makinen says.
But as Coate’s attorney points out, that wasn’t ever the case with his client. He’s asking for some common sense
“We’re looking for something that both employers and employees can find a reasonable, working, practical solution,” he says. “For somebody in Brandon’s situation, who uses it after work, and who’s in a safe position answering phone calls from a desk… I think we can find a way to live together and not terminate these people.”
Brandon Coats was fired in 2012 for failing a drug test that he told employers he would fail due to off-work medical cannabis use. Colorado’s medical marijuana amendment says that “nothing [in the bill]shall require any employer to accommodate the medical use of marijuana in any workplace,” and Courts and employers have routinely used that and federal marijuana laws and federal labor and employment laws to supersede state medical pot laws. But Coats didn’t think that was right, so he took DISH to court. He lost and then appealed with the state Appeals court. He failed there too, as the courts basically said anything the feds says is illegal is illegal. So he tried a third time to get his job back by filing with the Colorado Supreme Court – a measure that activist Kathleen Chippi says could spell danger for medical marijuana patients in the state if the Supreme Court makes the same ruling as the state appeals court.
So Chippi has filed an amicus brief with the court – which is basically a well-noted opinion for the court to consider while making their decision. Chippi and the Patient-Caregivers Rights Coalition say they are hopeful that the judge will have some compassion and common sense.
“If the court rules patients have rights but federal law preempts, than anything related to federal aid, federal housing, banking, student loans, organ transplants or cultivation/possession/use will still be at risk,” she writes. “In our opinion, the court will most likely not rule against patient rights and against federal preemption–which would mean the patients still have all risks above at a state level, but not at a federal level.”
To learn more or to donate to the PCRPL, visit their Fundly.com fundraising site.