Off-duty smoking of pot goes to court

Dish Network employee fired for medical marijuana

A case pending before the Colorado Court of Appeals could have a big impact on whether employers will be able to fire workers who smoke marijuana off duty.

The case concerns a former Dish Network telephone operator and medical marijuana patient who was fired after testing positive for pot, even though there was no evidence he was impaired on the job. The operator, Brandon Coats, says it is against state law to fire someone for doing something off duty that is legal.

While Coatsĺ case concerns medical marijuana law, it is drawing extra attention after the passage of Amendment 64, which legalized marijuana use for everyone 21 and older in Colorado. Some employers said during Amendment 64ĺs campaign that they worried that the measure would prevent them from enforcing workplace drug policies that prohibit any marijuana use at all.

What Coatsĺ case may answer: Does it?

ôThese are things that employers are definitely concerned about,ö said Vance Knapp, an attorney for the Denver firm Sherman & Howard who specializes in employment law. ôFor policy reasons, we want to make sure we have a safe workplace. And obviously, that has to be balanced against employeesĺ rights in Amendment 64.ö

Previous cases have found that medical marijuana patients do not have a right to cannabis under Colorado law. Coatsĺ case, though, asks a different question.

Coloradoĺs Lawful Off-Duty Activities Statute prevents employers from firing workers because of the legal things those employees do outside the office ľ such as smoking cigarettes, for instance ľ as long as those activities do not conflict with the employeesĺ work. Coatsĺ case is the first to challenge whether that protection extends to marijuana use that is legal under Colorado law but illegal under federal law.

Coatsĺ attorney, Michael Evans, argues in his brief to the Colorado Court of Appeals that taking a narrow reading of the law would mean Coloradoĺs nearly 100,000 medical marijuana patients ôwould likely face immediate termination or become unemployable.

ôIt should be broadly and liberally construed to effectuate its purpose, which is to protect employees from unfair or discriminatory employment practices when they are in full compliance with state law,ö Evans writes in the brief.

But attorneys for Dish Network argue that marijuanaĺs federal status makes it ineligible for protection under the Lawful Off-Duty Activities Statute.

ôAll use of marijuana is illegal under federal law,ö the attorneys write in their brief to the appeals court. ôAccordingly, using medical marijuana is not a Ĺlawful activity.ĺö In countering employersĺ concerns, Amendment 64ĺs backers point to language in the measure that says: ôNothing in this section is intended ... to affect the ability of employers to have policies restricting the use of marijuana by employees.ö

Knapp, though, doesnĺt see that passage as crystal clear when it comes to off-duty use.

ôI think there is some wiggle room,ö he said.

Still, Knapp expects the Court of Appeals ľ which has not indicated when it will rule on the case ľ to side with Dish Network.ö

As long as itĺs illegal under federal law,ö he said of marijuana, ôit cannot, by definition, be lawful.ö

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