Can You Be Fired For Legal Marijuana Use?

Oct 1, 2014 Update

The Coats case was heard by the Colorado Supreme Court this week.

Mr. Coats’ attorney made the case that if employers can fire you for using medical marijuana, then legal medical marijuana is only available for the unemployed.

One legal analyst suggested the court will likely rule very narrowly whether or not “;awful activity” under the Colorado Lawful Activities Statute means “lawful in Colorado” or “lawful generally”.

Regardless of how the court decides this case, laws are going to have to be updated and clarified to reflect the reality and intent of legal marijuana. Colorado could simply update it’s own Lawful Activities statute to include activities that are lawful under state law.

And if the Federal Government would reschedule marijuana from Schedule I down to to Schedule III, that also could mitigate the claim that marijuana use is “always unlawful” under Federal law.

This case is important, but it certainly won’t be the last work on medical marijuana civil rights and employment rights.

The answer is yes, you can. Your employer can fire you for failing a drug test for marijuana. This is true even if you were using marijuana completely legally, either for medical use, or in Colorado and Washington where it is legal for recreational use.

But this could finally change, and your legal right to smoke could be protected under the law. At least one state’s high court is taking on this question which could have employee rights implications nationwide.

The Colorado Supreme Court is taking up the case of a man who was fired over legal medical marijuana use, where there was no evidence or claim that his job performance was ever negatively affected. The cases is Coats v Dish Network.

Brandon Coats, Fired for off-duty legal marijuana use by his employer

Brandon Coats was fired for off-duty legal marijuana use by his employer, Dish Network
(Image: The Denver Post)

Brandon Coats was a telephone operator who failed a marijuana drug test. He was fired by his employer, Dish Networks in 2010.

Coats is confined to a wheelchair as a result of a car accident. He was, at the time in 2010 a legal medical marijuana card holder who used cannabis to control muscle spasms. Since then, Colorado has legalized marijuana for any use.

His employment record was said to be “exemplary”, but his employer, Dish Networks, has a strict drug testing policy that prohibits any employee from using marijuana. Even when done legally, off work hours, and with no discernible impact on job performance.

Coats is a near-perfect test case. He was a model employee with a clear disability, with the legal right to medical relief. There was no other reason cited, other than his employers arbitrary strict, yet legally allowable zero-tolerance policy.

Under Colorado labor law, there is a Lawful Activities Statute that states that any lawful activity can’t be a fire-able offense. So any legal activity or hobby, whether it is cigarette smoking or squirrel hunting, as long as it is done off of company time, should not be grounds for dismissal.

But when this case was heard in Colorado Court of Appeals, that court found the firing to be lawful due to the Federal prohibition of marijuana.The appeals court concluded that anything illegal under federal law can’t be considered “lawful”. This is what Federal laws against any legal marijuana do.

Employer Group Defends Right to Fire

Employers naturally always want to retain as much power to fire anyone for any reason as they can. Any restriction or employee right is just a headache and a slippery slope.

A representative from an employer group, Curtis Graves of the Mountain State Employer Council makes the point that the only way to tell if a person has active THC, and therefore is impaired at any given time is through a blood test. Employers only have access to urine tests or hair tests, which indicate previous use of cannabis, but don’t show impairment.

So their hands are tied, apparently. “It would be much easier if we had a drug test that showed present impairment,” Graves said. “But it’s not that easy.”

But that is the whole point. Why do employers think it is OK to fire someone based on a factor that is 100% unrelated to job performance? Of is the point that they’d rather be blood testing employees for substances  in the middle of the day? I’m not quite sure.

The Damage from Schedule I Classification

The Classification of Marijuana as a Federal Schedule I controlled substance is the root of the problem.  It designates cannabis as unfit for any legal use outside of Federally approved research, which is rarely granted.

Schedule I is reserved for substances that are “highly addictive” and have “no medically accepted use”.

Marijuana clearly does not fit into this category, by any objective reading.

While marijuana is completely prohibited at the Federal level, the complications and conflicts for legal use in the states are numerous. We’ve seen the risk that states face with marijuana dispensary raids in the past, and how Federal banking laws have restricted normal banking functions for legitimate businesses.

Though the Feds have pledged to back off on enforcement, and fix the banking laws, the Federal statutes and official policies have not changed.

An Issue of Civil Rights

Once marijuana is fully legal, and users are free from the risk of arrest and jail, there are other rights to be protected and defended.

You can be drug tested at a hospital without your permission.

You can lose access to your kids in family court if you are found to smoke marijuana.

Fighting issues of civil rights and discrimination is the next wave of marijuana legalization rights.

So activists will have work to do for years to come.

But this Colorado court case could be an important first step.

About David Matson