Many observers were shocked and saddened when Brandon Coats, a quadriplegic who is authorized to use medical marijuana under Colorado state 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 — and the states that have adopted full legalization for all adults, as well. 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 an hour and a half; certainly smoking marijuana in the evening, or on the weekend, would have no impact on the employee who comes to work the following day.
Effort renewed to add PTSD to Colorado medical marijuana list
(Craig F. Walker, Denver Post file)
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 absent that voluntary shift in policy, the obligation is now on those of us who favor marijuana legalization to go back to the state 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 reason of 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-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.
And that is simply unfair, and it cannot be allowed to stand. So let’s get to work and fix this problem.
Keith Stroup is an attorney, author of “It’s NORML to Smoke Pot: The 40-year Fight for Marijuana Smokers’ Rights” and founder of the National Organization for the Reform of Marijuana Laws, where he serves as legal counsel.
Members of the Colorado Supreme Court have unanimously affirmed lower courts’ rulings that employers possess the authority to fire employees for their off-the-job use of marijuana. The Court found that the plant’s legal status under state law does not make the act of consuming cannabis “lawful” under the state’s Lawful Off-Duty Activities Statute.
The Justices opined, “The supreme court holds that under the plain language of section 24-34-402.5, C.R.S. (2014), Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law. 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.”
The ruling upholds the decision by Dish Network in 2010 to fire employee Brandon Coats, a quadriplegic who used cannabis to treat muscle spasticity. Coats failed a random urine screen. Such tests identify the presence of the inert metabolite (byproduct) carboxy-THC, which may be present in urine for weeks or even months after one has ceased using the substance. Consequently, the Justice Department acknowledges, “A positive test result, even when confirmed, only indicates that a particular substance is present in the test subject’s body tissue. It does not indicate abuse or addiction; recency, frequency, or amount of use; or impairment.”
The Colorado decision mirrors those of courts in California, Oregon, and Washington — each of which similarly determined that state laws exempting marijuana consumers from criminal liability do not extend to civil protections in the workplace.
According to a study published last year in the Journal of Addictive Diseases, employees who test positive for carboxy-THC do not possess an elevated risk of workplace accident compared to employees who test negative.
Full text of the decision, Coats v. Dish Network, is here.
One-quarter of patients with multiple sclerosis report having used cannabis therapeutically and nearly one out of six (16 percent) currently use it to treat symptoms of the disease, according to survey data commissioned by the North American Research Committee on MS.
Over 5,600 MS patients participated in the survey, the results of which were presented last week at the Consortium of Multiple Sclerosis Center 2015 Annual Meeting.
Most subjects who had tried marijuana said it mitigated disease symptoms, such as spasticity or pain. Only five percent of patients surveyed said that cannabis said it did not provide some level of relief.
Those with more advanced symptoms of MS were more likely to report using cannabis therapeutically.
Of those surveyed, 82 percent said that they would consider cannabis therapy if it were a legal option in their state.
Clinical trials have previously reported that cannabis inhalation is superior to placebo in reducing pain and spasticity in patients with treatment-resistant MS. Other studies indicate that long-term use of cannabinoid therapy may potentially modify MS progression.
Previously survey data published in the journal Neurology reported that 14 percent of MS patients used cannabis for symptom management.
When my answer to the questions, “So what do you want to do?” changed from “I don’t know” to “I want to advocate for marijuana law reform” I got surprised faces, sometimes gasps, many smiles and A LOT of what I like to call, hushed support. Hushed support is the kind of support where someone congratulates you and tells you how much they agree with you, but also lowers their voice in hopes that no one else was paying attention. As a born and raised Floridian, I understood the hesitancy to speak at a regular volume when talking about the need for cannabis law reform. What I didn’t understand, however, was how one could be content hiding how they really felt. How much support does ‘hushed support’ really offer? It was these reactions that solidified my desire to advocate for marijuana policy reform for a living.
As NORML’s newly appointed Political Director I couldn’t be more excited to join a team of groundbreakers and thought leaders. I feel honored to continue the legacy NORML has in place and a necessity to serve it well. I am eager to have the chance to represent NORML in the political sphere and to provide an even louder voice to the tens of millions of cannabis consumers from around the country.
While I have found a more permanent role in the marijuana policy debate, I challenge you to find yours. I challenge you to no longer offer ‘hushed support’ and instead proudly take action and responsibility to help reform the laws in your state. (If you aren’t sure what they look like, check it out here!)
I’m excited to open this new door and advocate for something I truly believe in: legalizing the responsible use of cannabis by adults around the country. So I invite you to join me as I embark on this new journey with NORML and hopefully I can encourage you to help me along the way and bring a voice to your own communities.
With enthusiasm and gratitude, I thank you for welcoming me into the NORML family.
Along with family picnics and public concerts, as a country we wear poppies and decorate the graves of the fallen on the last Monday in May to honor our soldiers who have died while serving in the military. It is a holiday to remember their great sacrifices to protect our country, our citizens, and our way of life.
As we pause to celebrate Memorial Day this year, it also gives us an occasion to consider the sacrifices made by all those who have served, including the tens of thousands of veterans living with post-traumatic stress disorder (PTSD) and other emotional problems resulting from their service to our country.
While additional placebo-controlled research is needed to reconfirm the benefits of medical marijuana in reducing PTSD symptoms, existing research, along with anecdotal accounts from large numbers of PTSD sufferers, is sufficient today to justify its recommendation by physicians. Many combat veterans suffering from PTSD rely on cannabis to control their anger, nightmares and sometimes-violent rage.
Currently, those physicians affiliated with the US Department of Veterans Affairs may not legally recommend the use of medical marijuana to those veterans who could benefit from it use, even in states that have legalized the medical use. But that finally appears to be changing.
Offered as an amendment to a veterans affairs and military construction bill, a provision to expand medical marijuana coverage to US veterans was approved this week by the Senate Appropriations Committee, assuring it will be included in the version of the bill that will be sent shortly to the full senate for consideration. A similar amendment to a House military appropriations bill recently failed by only three votes on the floor of the House (210-213), setting up the need for a reconciliation process between the House and Senate versions of the appropriations bill, and the likelihood of the amendment being included in the final version of the bill approved by Congress.
While this most recent progress in Congress to approve the medical use of marijuana as a treatment option for VA physicians treating veterans is promising, it is but one small step in a longer process that must continue forward before marijuana is recognized under federal law as a valuable therapeutic agent for many conditions and illnesses.
But on this Memorial Day 2015, let’s honor our military men and women who have given the ultimate sacrifice, as well as those surviving veterans who have served their country with distinction, by committing ourselves to assuring that all Americans, and especially our veterans, have access to whatever therapies treat their symptoms and conditions most effectively and help them heal, including the option of medical marijuana; and by removing the remaining governmental obstacles that undermine this noble goal and interfere with the physician-patient relationship.