Teh One Who Knocks
04-25-2013, 05:49 PM
By John Ingold - The Denver Post
A divided Colorado Court of Appeals panel on Thursday upheld the firing of a man for off-the-job medical-marijuana use, concluding that, because marijuana is illegal under federal law, employees have no protection to use it anytime.
The decision — which is precedent-setting — has broad implications not just for medical-marijuana patients but for any adult using marijuana in Colorado since voters legalized the substance in November.
The case is the first to look at whether off-duty marijuana use that is legal under state law is protected by Colorado's Lawful Off-Duty Activities Statute. The statute says employers can't fire employees for doing legal things off-the-clock.
Brandon Coats — a quadriplegic medical-marijuana patient who was fired from his job as a telephone operator at Dish Network after testing positive for marijuana — said the statute should apply in his case, since there is no evidence he was impaired on the job.
A trial court disagreed, but, in doing so, cited a previous court ruling that said the state's medical-marijuana law only creates exemptions from prosecution and not rights. Thursday's ruling by the Colorado Court of Appeals reaches a much broader conclusion: That nothing illegal federally can be considered "lawful" under the Lawful Off-Duty Activities Statute.
"While we agree that the general purpose of (the Lawful Off-Duty Activities Statute) is to keep an employer's proverbial nose out of an employee's off-site off-hours business," Court of Appeals Chief Judge Janice Davidson wrote in the opinion, "we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law."
Judge Jose Marquez concurred in the opinion.
But Judge John Webb disagreed, saying that the Lawful Off-Duty Activities Statute should be read as only concerning state law. The statute, Webb argued, was intended to protect employees from discriminatory firing.
"If an employee's off-the-job activity violated only federal criminal law, that activity might well warrant termination based on 'a bona fide occupational requirement' of the position," Webb wrote in his dissent. "But if the employee's activity was unlawful only under federal law, and it did not relate to such a requirement, then the employee would be protected from termination."
All three judges agreed, however, in reversing the trial court's ruling that Coats should have to pay Dish Network's attorney's fees for the case.
Thursday's decision comes as lawmakers are debating how to regulate legalized marijuana for anyone 21 and older. Amendment 64, the measure that legalized use and possession of up to an ounce of marijuana for adults, says employers can still create drug policies governing marijuana. A state task force subsequently recommended that section be interpreted as allowing employers to fire employees for off-the-job marijuana use.
The Court of Appeals ruling is more evidence that — despite Colorado's place at the forefront of liberalizing marijuana laws — employees who smoke marijuana off-duty do so at their own risk.
A divided Colorado Court of Appeals panel on Thursday upheld the firing of a man for off-the-job medical-marijuana use, concluding that, because marijuana is illegal under federal law, employees have no protection to use it anytime.
The decision — which is precedent-setting — has broad implications not just for medical-marijuana patients but for any adult using marijuana in Colorado since voters legalized the substance in November.
The case is the first to look at whether off-duty marijuana use that is legal under state law is protected by Colorado's Lawful Off-Duty Activities Statute. The statute says employers can't fire employees for doing legal things off-the-clock.
Brandon Coats — a quadriplegic medical-marijuana patient who was fired from his job as a telephone operator at Dish Network after testing positive for marijuana — said the statute should apply in his case, since there is no evidence he was impaired on the job.
A trial court disagreed, but, in doing so, cited a previous court ruling that said the state's medical-marijuana law only creates exemptions from prosecution and not rights. Thursday's ruling by the Colorado Court of Appeals reaches a much broader conclusion: That nothing illegal federally can be considered "lawful" under the Lawful Off-Duty Activities Statute.
"While we agree that the general purpose of (the Lawful Off-Duty Activities Statute) is to keep an employer's proverbial nose out of an employee's off-site off-hours business," Court of Appeals Chief Judge Janice Davidson wrote in the opinion, "we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law."
Judge Jose Marquez concurred in the opinion.
But Judge John Webb disagreed, saying that the Lawful Off-Duty Activities Statute should be read as only concerning state law. The statute, Webb argued, was intended to protect employees from discriminatory firing.
"If an employee's off-the-job activity violated only federal criminal law, that activity might well warrant termination based on 'a bona fide occupational requirement' of the position," Webb wrote in his dissent. "But if the employee's activity was unlawful only under federal law, and it did not relate to such a requirement, then the employee would be protected from termination."
All three judges agreed, however, in reversing the trial court's ruling that Coats should have to pay Dish Network's attorney's fees for the case.
Thursday's decision comes as lawmakers are debating how to regulate legalized marijuana for anyone 21 and older. Amendment 64, the measure that legalized use and possession of up to an ounce of marijuana for adults, says employers can still create drug policies governing marijuana. A state task force subsequently recommended that section be interpreted as allowing employers to fire employees for off-the-job marijuana use.
The Court of Appeals ruling is more evidence that — despite Colorado's place at the forefront of liberalizing marijuana laws — employees who smoke marijuana off-duty do so at their own risk.