Pubdate: Fri, 26 Apr 2013
Source: Denver Post (CO)
Copyright: 2013 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: John Ingold
Page: 1A

FIRING IN POT CASE UPHELD

A Precedent-Setting Ruling Says Off-The-Clock Use Is Not Protected.

Coloradans who use medical marijuana off the clock can be fired from
their jobs for doing so even if they aren't impaired on the job, an
appeals court ruled Thursday in a major decision.

A divided Colorado Court of Appeals panel upheld the firing of a
quadriplegic man for off-the-job medical-marijuana use, concluding
that, because marijuana is illegal under federal law, employees have
no protection to use it anytime.

The 2-1 decision - which is precedent setting - has broad implications
not just for the state's nearly 109,000 medical-marijuana patients but
for any adult using marijuana in Colorado since voters legalized the
substance in November. The case is the first to look at whether
off-duty marijuana use that is legal under state law is protected by
Colorado's Lawful Off-Duty Activities Statute. The statute says
employers can't fire employees for doing legal things off the clock.

"What the Colorado Court of Appeals said is, by definition, the use of
medical marijuana cannot be lawful," said Vance Knapp, an attorney
with Sherman and Howard who specializes in employment law.

In 2010, Dish Network fired Brandon Coats, a medical-marijuana
patient, from his job as a telephone operator because he failed a
random drug test. Coats - who is wheelchair-bound because of a car
accident and says he uses marijuana to control muscle spasms-sued
Dish, arguing that his marijuana use was legal under state law and
that he was never impaired on the job. Coats said he was a model employee.

"I'm not smoking it just to have fun," Coats said Thursday. "I really
do need it to function in life."

A trial court upheld the firing, but, in doing so, cited a previous
court ruling that said the state's medical-marijuana law only creates
exemptions from prosecution and not rights. Thursday's ruling by the
Colorado Court of Appeals reaches a much broader conclusion: That
nothing illegal federally can be considered "lawful" under the Lawful
Off-Duty Activities Statute.

"While we agree that the general purpose of (the Lawful Off Duty
Activities Statute) is to keep an employer's proverbial nose out of an
employee's offsite off-hours business," Court of Appeals Chief Judge
Janice Davidson wrote in the opinion, "we can find no legislative
intent to extend employment protection to those engaged in activities
that violate federal law."

Judge Jose Marquez concurred in the opinion.

But Judge John Webb disagreed, saying that the Lawful Off-Duty
Activities Statute should be read as only concerning state law. The
statute, Webb argued, was intended to protect employees from
discriminatory firing.

"If an employee's off-the-job activity violated only federal criminal
law, that activity might well warrant termination based on 'a bona
fide occupational requirement' of the position," Webb wrote in his
dissent. "But if the employee's activity was unlawful only under
federal law, and it did not relate to such a requirement, then the
employee would be protected from termination."

All three judges agreed, however, in reversing the trial court's
ruling that Coats should have to pay Dish Network's attorneys' fees
for the case.

Coats said he is disappointed in the ruling, and his attorney, Michael
Evans, said he would ask the state Supreme Court to review the
decision. Coats said he has had trouble finding work since being
fired, and Evans said it is important for all medical-marijuana
patients that the case be fought until the end.

"(Coats) was very aware that, with his condition, if he can't win this
case, no one can," Evans said.

Thursday's decision comes as lawmakers are debating how to regulate
legalized marijuana for anyone 21 and older. Amendment 64, the measure
that legalized use and possession of up to an ounce of marijuana for
adults, says employers can still create drug policies governing
marijuana. A state task force subsequently recommended that section be
interpreted as allowing employers to fire employees for off-the-job
marijuana use.

Brian Vicente, a marijuana advocate and one of Amendment 64's authors,
said the law is "open to interpretation" whether off-the-job
recreational marijuana use is a fireable act. But he said it is unfair
to fire medical-marijuana patients for using cannabis.

"They're basically permitting employers to fire disabled employees,
not based on the quality of their work but on the type of medicine
they use," Vicente said of the appeals court's ruling.

Employers, though, greeted Thursday's decision with approval. Holli
Hartman, an employment law attorney with Baker Hostetler in Denver,
said the decision is "a pretty strong ruling for employers."

The National Federation of Independent Business, which filed an amicus
brief supporting Dish Network's position in the Coats case, also
applauded the decision.

"We would not tolerate any attempt to infringe on the employers' right
to a zero-tolerance drug policy," said Tony Gagliardi, the NFIB's
state director in Colorado.
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