By Rachel Estabrook Sep 29, 2014
Tomorrow, Colorado’s Supreme Court will consider whether employers should be able to fire workers for using medical marijuana.
Brandon Coats, the plaintiff, is suing Dish Network for firing him in 2010 from his job as a telephone operator after he tested positive for marijuana.
As a teenager, Coats was injured in a car accident, which left him unable to walk.
“I use marijuana at nighttime, and just a little bit gets my spasms to where my body’s not going out of control,” he says.
Dish Network did not respond to Colorado Public Radio News’ requests for comment, but has said in court that the firing is in line with a policy that complies with federal law making marijuana illegal. Lower courts in Colorado have sided with Dish Network.
Coats has appealed to the Supreme Court because, he says, he wants to work again.
“There’s a lot of people out there like me who would like to have a job but cannot, because their impairment requires them to use marijuana, and because marijuana’s looked down on for employment, they’re not able to get jobs,” he says.
Despite the legalization of both medical and recreational marijuana, Colorado law does not require employers to allow marijuana use. The statute authorizing medical use of marijuana states, “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” Amendment 64, which approved recreational marijuana use for Colorado adults, has a similar provision.
But Coats’ attorney has cited a Colorado law called the “Lawful Activities” statute, which prohibits an employer from discharging an employee for engaging in lawful activity off the premises of the business during nonworking hours.
Lara Makinen says most employers in Colorado have drug-free workplace policies spurred by the federal Drug Free Workplace Act of 1988. Makinen is on the board of the Colorado chapter of the Society for Human Resources Management. And she says, only a very small portion of employers have relaxed those policies since the legalization of medical and recreational marijuana in Colorado. Many employers have actually tightened their drug testing policies, according to a survey by the Mountain States Employers Council.
Makinen holds regular phone calls and writes a newsletter for other human resources professionals in the state, and she says she has gotten a lot of questions about marijuana. “They want to know whether to stop drug testing, whether to change their policies,” she says. “They want to know, if someone’s smoking pot in their car at lunch, do I have to let them keep working after lunch?”
She says she’s sympathetic to Brandon Coats’ case, but worries that a ruling in his favor would open up employers to more lawsuits, and potentially embolden some employees to show up at work impaired. “Especially in jobs that have high safety standards, physicians, operating machinery… we have to be able to say as an employer, you have to come here clean and clear-headed,” Makinen says.
Coats’ attorney, Michael Evans, says his case isn’t about recreational marijuana, nor about using medical marijuana at work.
“We’re looking for something that both employers and employees can find a reasonable, working, practical solution,” he says. “For somebody in Brandon’s situation, who uses it after work, and who’s in a safe position answering phone calls from a desk… I think we can find a way to live together and not terminate these people.”
The Coats v. Dish case has gotten significant national attention. Makinen says there is no precedent, despite the fact that 22 other states and the District of Columbia have legalized medical marijuana. “The bottom line is there’s no one else who has policies on this stuff,” she says.