Marijuana Legalization Landscape pot

A marijuana plant is visible at Compassionate Care Foundation's medical marijuana dispensary in Egg Harbor Township, N.J.

By all accounts, Brandon Coats was a model employee. He worked in the call center for DISH Network, beginning in 2007, despite being paralyzed from a car accident when he was a teen.

For three years, Coats did well in his job. But in 2010, he was selected for a random drug test and failed it (and he admitted to his supervisor before the test that it would happen, according to TIME). The reason? Medical marijuana that Coats used at night for sleep and to control spasms, which he said made him a better employee. The positive result led to his termination.

Coats sued DISH in a lawsuit that went all the way to the Colorado Supreme Court, which ruled in DISH’s favor. Courts around the country have taken similar stances on the issue of cannabis in the workplace, according to TIME.

Now, Colorado lawmakers want to redefine what is considered a “lawful activity” that would override the 2015 Colorado Supreme Court decision, as well as ensure cases like Coats’ don’t happen again. But one critic says it would invalidate drug-free workplace policies.

Colorado’s medical marijuana law has been on the books since voters approved Amendment 20 in 2000. But a person who holds a medical marijuana license, even a disabled person, can still be fired for using marijuana, even when that use takes place away from the workplace and when the employee is off-duty.

Coats’ attorney, Michael Evans, tried to use a “lawful activity” defense, that Coats was using a substance deemed legal by the state of Colorado. But the Court ruled that the state’s lawful activity statute does not extend to activities considered illegal under federal law.

That’s where House Bill 1089 comes in. Reps. Jovan Melton, D-Aurora and Jonathan Singer, D-Longmont, are sponsoring the bill that would change that statute to allow for activities deemed illegal under federal law but legal under Colorado law, such as consumption of marijuana.

The bill points out something of an inconsistency within Amendment 20 as well as in Amendment 64, the voter-approved amendment from 2013 that legalized recreational marijuana use. Both amendments require marijuana be regulated the same as alcohol. HB 1089 would bring the statute — 24-34-402.5 — into harmony with the state constitution, according to the bill’s language.

Michael Elliott is an attorney and board member with Colorado NORML, the National Organization for the Reform of Marijuana Laws. He’s been working on the bill with its sponsors.

The lawful activities statute dates back about 30 years, Elliott said. The reason for it back then, as now, is employee privacy, he explained. “When an employee is engaged in lawful activities off-duty and outside the premises of the employer, they cannot be terminated by the employer for a lawful activity.”

The statute was initially written to deal with tobacco, he said, and a way to create a balance between the rights of employers and the rights of their employees.

But the statute is also overly broad, as Elliott sees it. In the Coats v. Dish decision, the Court ruled that “lawful” applied to what’s legal under both state and federal law. “The term ‘lawful’ as it is used in section 24-34-402.5 is not restricted in any way, [Colorado Politics emphasis] and we decline to engraft [impose or add] a state law limitation onto the term,” the Court wrote in its opinion.

NORML has identified the bill as a top priority for passage in 2020.

“We’re doing this because, first of all, it does fix a huge wrong with Brandon Coats case,” Elliott said. “Is it fair to terminate someone who is engaged in this activity off-duty? There are privacy rights at issue. This bill would right that wrong and in a way that protects all Colorado citizens.”

And “because alcohol is protected by that statute, and Amendment 64 directs the state to treat marijuana like alcohol, consumers should receive the same protections” for using cannabis, he said.

But should the bill pass the General Assembly, could it invalidate an employer's right to random drug tests?

Yes, says Tony Gagliardi, state director for the Colorado Chapter of the National Federation of Independent Business. Gagliardi knows the Coats case well; he noted that Colorado Civil Justice and NFIB filed an amicus brief on behalf of DISH Network. All that Amendment 64 did was to say someone couldn't be held criminally liable for consuming marijuana, but it "did not usurp the employer's right to a drug-free workplace. We will fall on our sword for that," he said. It goes without saying that NFIB opposes the bill.

Gagliardi also pointed out that a small business could not afford the liability such a law would bring. 

Editor's note: This article was updated Jan. 14 to state that the lawful activities statute originally addressed tobacco.

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