By Andrew Rafferty | NBC News
Coloradans may be able to legally smoke pot now — but lighting up a joint, even off the clock, can still get you fired.
Although Centennial State voters approved a measure last fall to legalize marijuana use, the Colorado Court of Appeals ruled Thursday that employees can still be fired for testing positive for the drug — even if they never show up to work impaired.
A divided panel of judges decided that because marijuana use is illegal under federal law, employees are not protected from being terminated for using it.
The case centered on Brandon Coats, a quadriplegic medical-marijuana patient who was fired in 2010 from his job as a telephone operator for Dish Network after testing positive for the drug. Lawyers for Coats argued he was protected under a Colorado law that states it is illegal for workers to be terminated for participating in lawful activities off the clock.
But a trial court dismissed the claim in 2011, siding with Dish Network that medical marijuana use isn’t a “lawful activity” covered by the termination law.
Now, even though the law has changed, the outcome for Coats has not. In its ruling, the Colorado Court of Appeals sought to define the word “lawful,” ultimately concluding that for something to be lawful it “must be permitted by, and not contrary to, both state and federal law.”
Coats’ attorney Michael Evans said the ruling is a major blow to Coloradans who use marijuana for medicinal purposes.
Statement by David Weissman, director of the Rose Law Group Employment Law and Managed Health Care Law Practice: “This case represents yet another reminder of the tension between state and federal law when it comes to the legalized use of marijuana. The decision is actually consistent with rulings in several other states that medical marijuana cardholders are not protected from adverse employment actions based on their status as a cardholder.
“This is not the case in Arizona, however, as the Arizona Medical Marijuana Act contains a specific provision protecting cardholders against employment discrimination (the medical marijuana statutes in those other states contain no such express protections). Still, there are various exceptions to and limits on that protection under Arizona law, the scope of which have yet to be tested in our courts. Bottom line – this is still a murky issue, and Arizona employers and employees alike should tread carefully when dealing with the legal use of marijuana, even outside of the workplace.
Related: State’s medical marijuana law bans discrimination in workplace
Also: Ariz. medical marijuana dispensary revenues projected to reach $440M by 2016
If you’d like to discuss employment or health care law, contact David Weissman, director of the Rose Law Group Employment Law and Managed Health Care Law Practice, dweissman@roselawgroup.com
If you’d like to discuss medical marijuana, contact Ryan Hurley, director of the Rose Law Group Medical Marijuana Dept., rhurley@roselawgroup.com
