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Colorado Supreme Court gives the thumbs up to firing medical marijuana patients

By Rx MaryJane on June 15, 2015 • ( 1 )

Medical marijuana patients across Colorado got a harsh blow today.

It sucks! It’s frustrating! It’s not right! It’s not fair! We’re talking about patients and their medicine!

In the Coats v. Dish Network case, the Colorado Supreme Court found in favor of Dish and upheld the appellate court’s ruling:

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. We therefore affirm the court of appeals’ opinion.

This was a very disappointing decision, although not entirely unexpected.

The whole issue of what’s “lawful” has come up time and time again. It was the issue we had to address in the probation bill we supported last session. Judges and prosecutors claim that “lawful” means both state and federal law, so probationers were restricted from using cannabis, even medicinally. HB-1267 was the first step in addressing that.

Now, even off-work activities are held to this standard of what’s “lawful.” In light of that whole state-federal law conflict, the Court chose to side with employers and uphold the status quo.

Unfortunately, Amendment 20, the law that legalized medical use in Colorado, doesn’t provide employment protections to medical marijuana patients. In fact, it explicitly states that employers don’t have to change a thing.

Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.

Amendment 64 that legalized recreational use says pretty much the same thing, only more explicitly:

Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.

However, we are seeing a shift. Employers, especially in the tech industry, are relaxing their policies related to drug-testing, particularly for THC. Even the FBI has admitted to having difficulty finding qualified candidates who test clean. We encourage more employers to adopt reasonable policies on drug use and drug testing, particularly when it comes to medical use of cannabis. Employment decisions should be based on impairment, not on random drug tests.

The city of Boulder banned random drug testing by private employers in 1989, and it hasn’t seemed to hurt business any. Companies like Ball Aerospace and IBM seem to do just fine in Boulder. We would like to see other local jurisdictions to adopt similar regulations.

Because we can’t count on federal law changing any time soon, this issue, like many others, will require the state legislature to fix it. In other words, it’s up to the Colorado General Assembly to change the law and make things right for patients. Ultimately, a Patients Bill of Rights is in order to solidify the rights of those who choose to use cannabis medicinally.

We agree with Art Way, state director for the Drug Policy Alliance in Colorado, when he says, “It’s now painfully clear that something akin to a medical marijuana bill of rights is needed for patients in Colorado. Patients, advocates and legislators must find a way to extend the rights of patients and legal adult marijuana users when it comes to employment, housing and parental rights. We need robust state protections for our patients and legal adult marijuana users, just as we have robust regulations for the marijuana industry.”

We’ve been working on this issue for awhile now and have built a strong coalition of supporters. Cannabis Patients Alliance will be collaborating with fellow advocates, legislators, and of course, patients, to address this and other issues affecting patients in Colorado during the 2016 legislative session.

In the meantime, patients can still be fired for using cannabis, even outside of work, even if they’re not impaired. The Colorado Supreme Court gave employers the thumbs up.