If it is legal to use marijuana on your own time, can your employer fire you for smoking it off duty? That’s a question that the Colorado Court of Appeals is being asked to answer in the case of Brandon Coats, the Denver Postreported on Monday.
Coats is a former Dish Network telephone operator and medical-marijuana patient who was fired after testing positive for pot, even though there was no evidence he was impaired on the job. Coats has MS and uses the drug to fight symptoms of the disease.
Colorado's Lawful Off-Duty Activities Statute prevents employers from firing workers because of the legal things those employees do outside the office — such as smoking cigarettes, for instance — as long as those activities do not conflict with the employees' work.
While Coats' case concerns medical-marijuana law, it is drawing extra attention after the passage of Amendment 64, which legalized marijuana use for everyone age 21 and older in Colorado. Coats says it is against state law to fire someone for doing something off duty that is legal.
The heart of the case is how to balance two rights: Making sure the workplace is safe and protecting employees’ rights under Amendment 64.
Previous cases have found that medical-marijuana patients do not have a right to cannabis under Colorado law. Coats' case, though, asks a different question: Whether or not the protection under the Lawful Off-Duty Activities Statute extends to marijuana use that is legal under Colorado law but illegal under federal law.
If the court rules against Coats, roughly 100,000 medical-marijuana patients in Colorado "would likely face immediate termination or become unemployable," said Coats' attorney, Michael Evans.
But attorneys for Dish Network argue that marijuana's federal status makes it ineligible for protection because all use of marijuana is illegal under federal law.
Vance Knapp, an attorney for the Denver firm Sherman & Howard who specializes in employment law, doesn't see language in Amendment 64 that said: "Nothing in this section is intended ... to affect the ability of employers to have policies restricting the use of marijuana by employees," as crystal clear when it comes to off-duty use. "I think there is some wiggle room," he said.
Still, Knapp expects the Court of Appeals — which has not indicated when it will rule on the case — to side with Dish Network.
"As long as it's illegal under federal law," he said of marijuana, "it cannot, by definition, be lawful."
Amendment 64, the initiative that legalized limited possession and retail sales of marijuana in Colorado, passed in 34 of Colorado’s 64 counties. Statewide, 1.36 million voters cast their ballot for the amendment.