The Colorado Supreme Court’s upcoming decision in Coats v. Dish Network will be important for Colorado medical marijuana patients who risk losing their livelihoods when they fail employer drug tests. That, of course, has implications for the viability of the medical marijuana industry in Colorado. But the ripples of this decision may reach far beyond to other medical marijuana states and to other areas of law including disability law, privacy protection and the overarching issue of whether the federal Controlled Substances Act preempts state constitutions.
To Start from the Beginning …
Brandon Coats is a quadriplegic with a state-issued medical marijuana license. He medicates with marijuana at home at night to control spasms in his limbs. He worked full-time at Colorado-based Dish Network as a telephone customer service representative, where he pushed a button to answer customer telephone calls, about the only job he could do because of his physical limitations.
His employment was terminated in 2010 because he failed a random drug screening, even though he had had satisfactory performance reviews for all three years and there were no allegations that he was intoxicated or that he used marijuana at work. The sole reason for his termination was the presence of THC in his body, which violated Dish’s zero tolerance policy. He has not been able to find gainful employment since then.
Legal Twists and Turns
Article XVIII, Section 14 of the Colorado Constitution was amended to legalize the medical use of marijuana in 2000. In addition, the state’s Lawful Off-Duty Activities Statute, originally enacted to protect tobacco users, prohibits employers from discriminating against or terminating employees who engage in legal off-duty conduct.
Nonetheless, when Coats sued, the trial court dismissed the complaint, ruling that using marijuana for medical purposes was not a lawful activity because the provisions of the Colorado Constitution protected him from criminal prosecution, but did not give him a right to use marijuana. The trial court treated it as a decriminalization, rather than a legalization provision. To add insult to injury, the court also ordered Coats to pay Dish Network’s legal fees.
In 2013, the Colorado Court of Appeals upheld the employer’s right to fire Brandon Coats, at least in part because medical marijuana use is illegal under federal law, and so therefore, was not the kind of legal activity intended to be protected under the Lawful Off-Duty Activities Statute.
On further appeal, the Colorado Supreme Court heard oral arguments in September 2014. The arguments covered both the application of the Lawful Off-Duty Activities Statute and constitutional amendment. A decision is expected shortly.
Why This Matters Outside Colorado
The decision matters to Brandon Coats, of course, and it matters to Colorado’s medical marijuana industry. It is very difficult to sell medicine to the unemployed, especially in the absence of insurance coverage for cannabis. Strictly speaking, a decision from the Colorado Supreme Court is only binding on other Colorado courts. Nonetheless, the case has been closely watched throughout the legal marijuana community.
A number of states have lawful use statutes of some kind, including both New York and California. A decision in Colorado that, despite the protection of the state constitution, Coats’ medical marijuana use was not lawful could have a decidedly chilling effect on the willingness of patients to use medical marijuana. Doctor and patient reluctance could affect the potential for industry growth. Perhaps the best way to solve this narrow problem is through state legislation that makes clear that medical marijuana use is protected by the Lawful Off-Duty Activities Statute. This is the approach Arizona and Delaware have taken.
An adverse decision might also raise more widespread questions about the efficacy of state privacy and disability discrimination laws if employers were emboldened to inquire about and make hiring and firing decisions on the basis of medical treatment. Some would argue that this Pandora’s Box has already been opened by the U.S. Supreme Court’s decision in Hobby Lobby, relating to prescription drug coverage.
On the other hand, a decision that the federal Controlled Substances Act does not trump the Colorado constitution’s protection of medical marijuana use brings the conflict between federal and state laws to the front and center. This could go very well or very badly for the marijuana industry. In any event, we should not have to wait long.