Many people remember the Colorado Supreme Court’s decision Coats v. Dish Network on June 15, 2015, as a blow to the rights of medical marijuana patients.
Brandon Coats, a quadriplegic, had obtained a medical marijuana card and used marijuana at night to control muscle spasms. He was fired from his job at Dish Network for failing a drug screen even though his use was legal under state law and he never used at work and was never accused of being impaired. The court ultimately held that Dish Network acted within its rights.
A newer wave of states appear to be reaching for a different result, potentially offering greater legal protections to patients by embracing the standard set in Arizona. The Coats decision may ultimately be remembered as an aberration, a false start in the effort to figure out marijuana regulation in the early days.
The Gold Standard in Patient Protection
Title 36 of the Arizona Revised Statutes, Chapter 28, is the Arizona Medical Marijuana Act. Section 2813 bans employment discrimination on the sole basis of either being a medical marijuana cardholder or failing a drug test.
Subparagraph B provides that unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:
1. The person’s status as a cardholder or
2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.
Many jurisdictions, including Washington, D.C., limit drug screening in some way. A number of jurisdictions, including Illinois, go farther to prohibit the kind of “status discrimination” covered by paragraph B 1 of the Arizona law. But that can be an empty right without protection for patients who fail a drug screen.
The second paragraph is where Arizona broke new ground. Similar language might have protected Brandon Coats’ job. Delaware has followed suit, enacting similar language. More states, especially in the Northeast and Mid-Atlantic region may follow suit.
The Pennsylvania House is currently considering Senate Bill 3, which if enacted would establish a medical marijuana program within the Commonwealth. Section 901 (5)(ii) of the bill prohibits employment discrimination not only on the basis of an individual’s status as a medical cannabis cardholder, but also on the basis of:
An individual’s positive drug test for cannabis components or metabolites … unless the individual unlawfully used, possessed or was impaired by the medical cannabis while on the premises of the place of employment or during the hours of employment.
It is the all-important second paragraph.
A Wider Look at the Impact
The Coats decision related only to employment rights, but a closer look at the Arizona statute and its progeny in Delaware and Pennsylvania makes it clear that the anti-discrimination provisions are actually much broader. They also relate to landlord/tenant discrimination, discrimination in education and determinations in child custody and neglect proceedings. The last is perhaps the most frightening of consequences a medical marijuana patient may face.
The coming wave of medical marijuana legislation may prevent some of the senseless and perhaps inadvertent harm created by court decisions still colored by an increasingly discredited War on Drugs.