Pubdate: Wed, 01 Oct 2014
Source: Denver Post (CO)
Copyright: 2014 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: John Ingold
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

WORKPLACE'S PLACE

Even Justices Scratching Heads Over Rights to Use Pot, Rights of Employers

A Colorado Supreme Court hearing that will have major implications 
for marijuana and the workplace ended Tuesday with the state's most 
esteemed justices mostly scratching their heads.

The debate topic was this: If it isn't illegal to use medical 
marijuana, does that make it a "lawful" activity for which employers 
can't fire you?

How the justices answer that question will, for the first time, 
define whether employers must tolerate medical-marijuana use by their 
employees and will set whether medical-marijuana patients have any 
job protection for their cannabis use. The outcome also has 
implications for recreational marijuana use, which presents similar questions.

In an era of more permissive state laws on marijuana, the justices' 
decision could significantly affect whether people take advantage of 
those laws. An attorney for Brandon Coats, a quadriplegic who was 
fired for medical-marijuana use and who brought the case, said if the 
justices rule strictly against patients, "that means our medical 
marijuana amendment is really just for the unemployed."

Vance Knapp, an attorney who is not connected to the case but has 
followed it closely, said a ruling in favor of Coats could throw 
employment law "into chaos."

"This is a hot issue nationally," Knapp said.

"At a minimum," Coats' attorney, Michael Evans, said after the 
hearing, "I think everyone is going to get clarification."

For an hour Tuesday morning, Evans and an attorney for Dish Network, 
the company that fired Coats, sparred over the issue in the state 
Supreme Court's ornate downtown chambers. And, repeatedly, the 
Supreme Court justices interjected with the most basic of questions.

Justice Allison Eid asked both attorneys what they think "lawful" 
means. Justice Gregory Hobbs questioned the attorney for Dish Network 
about her definition of "use." Chief Justice Nancy Rice frequently 
asked about the simple facts of the case.

"Both counsel are asking us to write a discreet, well-crafted 
opinion," Rice said during the hearing. "And I don't know what happened here."

That confusion reflected the conflicting jumble of state and federal 
laws on display during the hearing.

Coats, who has used medical marijuana to control spasms and seizures 
since a car accident, says he never used nor was impaired on the job. 
He contends he was fired in 2010 from his job as a Dish Network 
customer service representative after a cheek-swab drug test revealed 
inactive THC in his system. Dish Network says it has a zero-tolerance 
policy against employees using illegal drugs.

Coats challenged his dismissal under a law called the Colorado Lawful 
Off-Duty Activities Statute. The law protects employees from 
termination for doing things off-the-clock that are legal.

But that's where the crux of the case rests: Is medical marijuana, 
which Colorado voters approved in 2000 but is illegal federally, 
actually "lawful"?

Two lower courts have said no, and Dish's attorney, Meghan Martinez, 
urged the Supreme Court to find the same. She argued that Colorado's 
medical-marijuana law, which is in the state constitution, doesn't 
guarantee patients the right to use marijuana.

"It is an affirmative defense or it is an exception to state criminal 
laws," she said. "It is not a broad right."

But Evans said he wasn't trying to argue that Coloradans have a right 
to marijuana. Doing so, he said, raised the specter of federal 
pre-emption of Colorado's entire marijuana regime.

Instead, Evans said the justices should consider only state law in 
deciding what is lawful under the state's off-duty activities 
statute. Other laws prevent employees from using marijuana on the 
clock or block employees in dangerous occupations from using drugs, he said.

"We believe you can find a way for employers and employees to 
peaceably coexist," Evans said.

Some justices seemed skeptical. Justice William Hood said just 
because the off-duty activities statute doesn't mention federal law 
doesn't mean the legislature didn't intend for it to be considered.

"It seems like a lot of your argument relies on silence," he told Evans.

Martinez met similar skepticism when she contended that Coats was 
actually "using" marijuana on the job because he said he derived 
medical benefit from cannabis that extended into work hours.

Speaking last, Michael Francisco of the state attorney general's 
office, sided with Dish. He said limiting the off-duty activities 
statute only to Colorado law could bring "absurdities," such as 
someone convicted of a crime like federal tax fraud not being able to be fired.

The justices could take weeks to issue a written opinion. Only six of 
the seven Supreme Court justices will decide that ruling. Justice 
Monica Marquez, whose father sat on the Court of Appeals panel that 
upheld Coats' firing, recused herself. A tie among Supreme Court 
justices would mean the lower court's ruling stands.

Outside after the hearing, Coats, who watched the arguments in his 
wheelchair from the front row, said he was optimistic, although he 
acknowledged the arguments were tough. Since Dish fired him, he said, 
he has been unemployed.

"I've been having a hard time finding employment," he said. "I want to work."
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MAP posted-by: Jay Bergstrom