Pubdate: Tue, 16 Jun 2015
Source: New York Times (NY)
Copyright: 2015 The New York Times Company
Author: Jack Healy


DENVER - Even in one of the country's most marijuana-friendly states, 
smoking pot off the job and away from work can still get an employee fired.

That was the unanimous conclusion of the Colorado Supreme Court on 
Monday, in a closely watched workplace lawsuit involving a customer 
service worker who uses medical marijuana to help soothe the painful 
spasms he has suffered since a car accident left him paralyzed. The 
worker, Brandon Coats, was fired from Dish Network in 2010 after 
testing positive for marijuana in a random drug test.

The court's decision was a blow to marijuana advocates, who have 
consistently seen court rulings go against them, with judges in 
Colorado and elsewhere saying that companies have the right to create 
their own drug policies. The loss by Mr. Coats highlights the limits 
of marijuana legalization at a time when more states are approving 
medical or recreational uses of a drug that is still outlawed as a 
Schedule I controlled substance by the federal government.

"The federal government has in many ways the last say," said Sam 
Kamin, a law professor at the University of Denver who studies legal 
issues swirling around marijuana's growing place in society. "As long 
as that federal prohibition is in place, the states can only do so much."

Twenty-three states allow medical marijuana, and Colorado is one of 
four that have legalized the drug's recreational use for adults. But 
Colorado is now confronting a backlash from two neighboring states, 
sheriffs, rural property owners and a hotel company who argue in 
separate lawsuits that Colorado's network of state-licensed marijuana 
retailers and dispensaries is illegal, bad for property values and 
public safety, and should be dismantled.

In another backlash, dozens of cities in Colorado and Washington 
State have banned marijuana dispensaries from their limits.

Despite those conflicts, the regulated marijuana industry has become 
a presence here. There are marijuana-themed yoga classes, cooking 
seminars and gallery events, and the state is taking in millions in 
tax dollars from marijuana sellers. Federal law enforcement officials 
have largely allowed states to proceed with their efforts to regulate 
medical and recreational marijuana.

But the federal prohibitions on the drug have made it difficult for 
dispensaries and regulated growers to get bank accounts or lines of 
credit, and have forced marijuana businesses to pay abnormally high 
tax bills. Marijuana advocates said the court's ruling on Monday 
highlighted the legal gray areas where marijuana intersects with 
employment law and other matters, such as custody disputes and housing cases.

Lawyers for Mr. Coats argued that his medical marijuana use should 
have been covered by a Colorado law aimed largely at protecting 
smokers from being fired. It says that employers may not fire workers 
for "any lawful activity" outside the workplace.

Mr. Coats, who said that marijuana had worked "like a miracle," had a 
medical marijuana card from the state, and said he smoked only at 
home, away from work, and that his use did not affect his job 
performance answering calls from cable-service customers.

But though marijuana may be legally grown in basements here and sold 
in downtown Denver dispensaries, the state's high court ruled that 
the clash in state and federal laws meant that Mr. Coats's use was 
not "lawful."

"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 
court's 6-to-0 decision.

The Colorado Supreme Court's ruling upheld two lower-court decisions. 
In a statement, Mr. Coats's lawyer, Michael Evans, said that the 
decision was "devastating," but that it at least clarified the 
boundaries of marijuana use for employees.

Lawyers said the ruling could have wide ripples in Colorado. Cathy 
Klein, a lawyer in the Denver area, represents a nurse who was fired 
after testing positive for marijuana. Ms. Klein said that the state 
nursing board has been trying to order her client into a drug 
treatment program, and that Monday's decision would reinforce 
societal images of marijuana users as low-level criminals.

"The fact that it is a crime under federal law, that part of the 
decision is going to be persuasive," she said.
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MAP posted-by: Jay Bergstrom