Pubdate: Wed, 17 Jun 2015
Source: Denver Post (CO)
Copyright: 2015 The Denver Post Corp
Author: Keith Stroup
Note: Keith Stroup is an attorney and founder of the National 
Organization for the Reform of Marijuana Laws.


Many observers were shocked and saddened when Brandon Coats, a 
quadriplegic who is authorized to use medical marijuana under 
Colorado 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 as 
well as the states that have adopted full legalization for all 
adults. 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 90 minutes. 
Certainly smoking marijuana in the evening or on the weekend would 
have no impact on the employee who comes to work the following day.

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 
without that voluntary shift in policy, the obligation is now on 
those of us who favor marijuana legalization to go back to the 
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 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-the-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.

That is simply unfair, and it cannot be allowed to stand. So let's 
get to work and fix this problem.
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MAP posted-by: Jay Bergstrom