marijuana use work cubicles
Ending Marijuana Prohibition Medical Marijuana Policy

It’s Time To Enact Appropriate Job Protections For Those Who Legally Use Marijuana

marijuana use work cubiclesBy Keith Stroup, NORML Legal Counsel

Many observers were shocked and saddened when Brandon Coats, a quadriplegic who is authorized to use medical marijuana under Colorado state law, was fired from his job with Dish Network in 2010 after a positive drug test. Dish failed to make an exception for Coats, who used marijuana while off duty to control his seizures, and the company insisted on his being fired, leaving Coats no choice but to challenge this issue in court.

Specifically, Coats claimed that his conduct should have been permitted under the state’s Lawful Off-Duty Activities Statute, which makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful,” away-from-work activities. But the trial court, followed by the Court of Appeals and now the Colorado Supreme Court, have all ruled that the statute only protects conduct that is legal under both state and federal law — and therefore offers no job protection to Coats.

“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.

This case highlights one of the most pressing issues that needs to be addressed in the states that have legalized medical cannabis use — and the states that have adopted full legalization for all adults, as well. Although employees are protected from arrest and prosecution under state law by these various laws, they remain vulnerable to employment discrimination in almost all states.

Simply put, if an employer wants to insist on what they frequently call a “drug-free workplace,” they are legally permitted to do that — regardless of the unfairness this policy may cause, because we must note that they do not apply those same standards to off-job alcohol consumption or the use of prescription drugs.

Most Americans would strongly support the right of an employer to fire anyone who comes to work in an impaired condition. But smoking marijuana leaves one mildly impaired only for about an hour and a half; certainly smoking marijuana in the evening, or on the weekend, would have no impact on the employee who comes to work the following day.

Effort renewed to add PTSD to Colorado medical marijuana list
(Craig F. Walker, Denver Post file)
What we really need is for employers in these legalized states to become responsible corporate citizens and to do the right thing: Stop penalizing employees, absent a showing of impairment on the job. But absent that voluntary shift in policy, the obligation is now on those of us who favor marijuana legalization to go back to the state legislatures in states that have legalized cannabis, either for medical use or for all adults, and enact appropriate job protections for those who use marijuana legally under state law.

Before being allowed to fire an employee who tests positive for THC, the employer must be required to demonstrate on-the-job impairment. Just as we do not permit someone to be fired for reason of their gender, religion or race, neither should we permit an employee to be fired simply because they elect to use marijuana legally under state law, without a showing of actual on-job impairment.

Otherwise we are requiring many medical-use patients to choose between relieving their pain and suffering and keeping their employment. And we are allowing employers to fire good, hard-working, loyal employees for off-the-job activities that are totally unrelated to their job performance.

And that is simply unfair, and it cannot be allowed to stand. So let’s get to work and fix this problem.

Keith Stroup is an attorney, author of “It’s NORML to Smoke Pot: The 40-year Fight for Marijuana Smokers’ Rights” and founder of the National Organization for the Reform of Marijuana Laws, where he serves as legal counsel.

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  • Thethoughtful1

    Back in 2008 these protections were almost passed into law in California but was vetoed by then Governor Arnold Schwarzenegger. http://www.sfgate.com/health/article/Governor-vetoes-medical-marijuana-bill-3192107.php
    Im sure Sacramento could get it through both chambers again but I have my doubts that Governor Jerry Brown would sign it into law. Maybe the next Governors election will see the current Lieutenant Governor Gavin Newsom rise to the Governorship as I believe he would sign a similar bill into law.

  • Thethoughtful1

    Back in 2008 these protections were almost passed into law in California but was vetoed by then Governor Arnold Schwarzenegger. http://www.sfgate.com/health/article/Governor-vetoes-medical-marijuana-bill-3192107.php
    Im sure Sacramento could get it through both chambers again but I have my doubts that Governor Jerry Brown would sign it into law. Maybe the next Governors election will see the current Lieutenant Governor Gavin Newsom rise to the Governorship as I believe he would sign a similar bill into law.

  • Kajira M

    Patients NEED to be able to use medication that they KNOW works for them off duty without fear of termination…until then, I’m forced to use medication that results in hundreds of deaths and countless addicts every year thanks to a 2008 California Supreme Court ruling that ensures employees have no protections (not even as an accommodation)!

    MEDICATION WITHOUT TERMINATION!!!

  • metanoia411

    It’s not just regular employment. My local hospital requires a full drug screen before you can volunteer there. I didn’t find out until after I had completed intense hospice training and had my heart set on doing this work. The HR lady said it sucks being her now since weed is legal in WA but they receive federal funds and are choosing to be safe by not allowing cannabis-positive people into the volunteer fold in case the government has a problem with it. I know I could pass the test via other means however this is my personal liberty line in the sand. One of my classmates is a medical user, she anticipated this problem and, after much hand wringing of hospital higher ups, was given the go ahead to train but she got the same HR call I did.

  • Nathaniel

    It is shameful that legalization bills do not have workers protections placed into them at the time of creation. It is extremely short sighted of the movement to forgo this basic right and keeps our progress moving at a snail’s pace. It is one of the few things I take issue with when looking at how a legalization bill is constructed.
    Unfortunately for all my writing to the joint committee to implement 91 I received only form letters stating “they were working on every aspect of the bill and were sure to have a bill everyone could get behind in some fashion” [I am paraphrasing there].

    I wonder what it is going to take to get this integral component infused into a bill/measure? How many folks have to lose their jobs and sue the system before it gets fixed?

  • BainDramage

    Workplace safeguards need to be added to any legalization statute for sure, but we also need to press forward to get cannabis taken off schedule 1. It shouldn’t be on any schedule, but given that it is extremely unlikely to be removed completely this decade, a reclassification from schedule 1 to schedule 4 would be appropriate. Then (in addition) enact workplace rules protecting an employee’s rights, and users will finally have the freedom they deserve.

    It’s wrong for people to have to live in fear of losing their jobs because they use a substance that helps them.

  • Kathleen Chippi

    Sadly Mr. Coats attorney conceded that A20 did NOT legalize cannabis in CO in 2000, that Mr. Coats had no “rights” and that federal law trumped state law anyway. He went on to argue it was lawful use under a state statute written to prevent tobacco smokers who smoked away from work from being fired passed back in the 1990’s….Unfortunate this case sets precedent for the nation…The Patient and Caregiver Rights Litigation Project offered to pay his ‘pro bono’ attorney and have co-counsel that would have never conceded what Coats attorney did but he of course refused in both the Appeals Court and the Supreme Court….he threw every patient nationwide under the bus and now wonders why he lost? Please.