On Monday, June 15, the Colorado Supreme Court ruled, in a 6-0 decision, that it is legal in the state for a company to fire any employee that tests positive for marijuana. The irony of the situation is obviously that Colorado has had legal medical cannabis since 2000 and has allowed recreational cultivation, possession, and consumption since January of 2014.
The Court justified its decision with the definition of the term “lawful” under Colorado’s Lawful Off-Duty Activities Statute. According to the justices, the existing state law refers to activities lawful under both state and federal law.
In his opinion, Justice Allison H. Eid wrote:
“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.”
In the big picture, this is simply another case of outdated federal law trumping the more progressive policies of states like Colorado, California, and Oregon. In its decision — because there was no existing statute regarding the subject — the Colorado Supreme Court relied upon federal law. Cannabis is considered a dangerous drug with absolutely no medical value under the Controlled Substances Act, a legacy of the Nixon administration in the early 1970s.
Quadriplegic Patient Brandon Coats
In Colorado, Brandon Coats, an employee of Dish Network who is also a wheelchair-bound quadriplegic, was fully compliant with state law when he used marijuana to treat muscle spasms during his off hours at home. However, the state also enables companies to make — and enforce — their own drug policies. Unfortunately, Dish Network has a zero tolerance policy for drug use that resulted in Coats being fired in 2010.
The Coats case slowly navigated the court system, each time losing. It finally resulted in the Colorado Supreme Court’s recent decision. The Court’s reliance on federal law to interpret a case in a legal marijuana state is striking because of its sheer lack of logic and compassion. In a somewhat libertarian state that embraces medical cannabis, gay marriage, and the plight of the small businessperson, a company’s ability to fire employees for doing what is legal under state law is more than slightly ironic.
The case of Coats exemplifies how progressive states like Colorado and Oregon truly are ahead of antiquated federal laws and policies. This case goes beyond the issue of medical marijuana to expose the struggle of states to exercise autonomy and reflect the will of their citizens. The topic of state’s rights and the ability of a state or commonwealth to go counter to federal policy is the underlying legal framework of this issue. Until the federal government either reclassifies cannabis to Schedule II or passes at least limited legislation recognizing national medical or recreational use, cases like that of Coats will become increasingly common as more states adopt legalization that goes counter to federal prohibition.
Don’t Blame the Feds
The feds can’t be blamed for everything, though. In all fairness, it is Colorado that allows employers to establish their own drug policies. Instead of whining about federal policy and the fact that Coats was unfairly fired — and his state’s Supreme Court just told his employer that they were in the right — citizens of Colorado should petition their representatives to make employee drug testing for cannabis illegal. Simply prohibiting companies from testing for a legal substance under state law prevents future toking employees from being detected in the first place, let alone dismissed.
The Coats case also illustrates the fact that some employers are pushing drug testing even harder. In light of medical and recreational laws across the nation, companies and executives that are opposed to legalization are using more robust testing to “weed out” employees who have lifestyles that, while they may be legal, don’t comply with the company’s moral highground. Those living in states with any level of legal cannabis who consume, but also value their job, must make some tough decisions regarding their lifestyle.
Until Colorado steps up to the plate and prohibits companies from testing employees for cannabis, a substance that is fully legal to grow and consume in the state for any citizen 21 or older (the vast majority of the workforce), breadwinners will live in a world of fear and confusion. Otherwise happy Colorado cannabis consumers will be asking themselves: “I’m allowed to do this, but my boss can fire me for it just because the company doesn’t like it? But it’s legal!”
Photo credit: The Denver Post