When it comes to the most disadvantaged and vulnerable citizens of Colorado, I believe we all share a fundamental value: that those who are ill should not have to choose between their doctors’ recommended medical treatment and earning a living.
Unfortunately, a recent case heard in the Colorado Supreme Court threatens to undermine this fundamental value. The case involves a quadriplegic employee of Dish Network, Brandon Coats, who consistently received outstanding employee evaluations in his clerical role with this large, Colorado-based company. Due to his serious medical condition, Mr. Coats used medical marijuana outside of work hours, under the care and recommendation of his doctor.
There is no allegation that Mr. Coats used marijuana at work or that his work suffered in any way. However, Mr. Coats’ medical marijuana use outside of work to treat his spasms and seizures was in violation of Dish Network’s drug testing policy — and the company fired him after he tested positive for marijuana.
In short, Coats was fired for legally relieving his pain in the privacy of his own home.
Brandon Coats vs. Dish Network:
A special report from The Cannabist
In 1991, the Americans with Disability Act was enacted to require employers to accommodate those with disabilities in the workplace. Additionally, Colorado has passed numerous laws prohibiting employment discrimination. One in particular prohibits employers from firing their employees for engaging in lawful conduct outside of the work place. That is the statute in question in this case:
Is medical marijuana use lawful in Colorado despite marijuana use being illegal under federal law?
In 2000, the citizens of Colorado passed Amendment 20, which allows a person suffering from severe medical conditions to treat their symptoms with marijuana under a doctor’s supervision. The amendment provides a method of treating painful symptoms of severe medical conditions for those who have been failed by traditional prescription drugs. Not surprisingly, there are more than 100,000 Coloradans who benefit from this law.
Of course, protecting employees from unjust discrimination is not the only consideration in this debate. Employers need the flexibility to hire and fire workers that fit within their culture. A key component of Colorado’s vibrant economy is the ability to craft a corporate culture that helps reflect their organization’s mission.
This was recognized by the authors of Amendment 20 when they wrote in the law that employers were not required to accommodate medical marijuana use in the workplace.
What was not contemplated, however, is whether an employer can effectively prohibit an employee from choosing medical marijuana even when the use takes place after business hours and off the business’ premises.
That is the question before the Colorado Supreme Court today: Can an employer fire an employee for their use of medical marijuana in the privacy of their own home if it has no effect on their work? The Coats case is a monumental case of first impression and will attempt to find the balance between long-standing values of society: protecting the disabled and severely ill’s right to work and the right of employers to control their workforce.
With the growing social acceptance of marijuana in our society after the passage of Colorado’s Amendment 64, which legalized marijuana use for all adults, one has to wonder why this controversy still exists. Who really cares if any quality employee, much less someone with their doctors’ recommendation, uses marijuana after work, so long as they are sober, safe and effective employees when they clock?
That said, the case before the Colorado Supreme Court is not about the recreational use of marijuana. The authors of Amendment 64 allowed employers to keep their drug testing policies related to marijuana usage. Nonetheless, more and more companies are recognizing that marijuana really should be treated like alcohol, and that their best employees should be able to, and will likely, use marijuana responsibly just like they do alcohol. The question of whether an employer should be prohibited from firing any adult for responsibly using marijuana outside of work (like they are with alcohol) is for another day.
Although the legal question for the Court is complex, the answer that is best for Colorado seems clear — quality employees in Colorado with terminal and debilitating illnesses should not be fired for merely adhering to their doctor’s recommendation to use medical marijuana in the privacy of their own home.
Joshua D. Kappel is a partner at Denver law firm Vicente Sederberg, LLC.