Workers’ Compensation Case Review: The Pot Paradox and How Using Legal Pot Can Cost You Your Job

Aug 21, 2014 | WC & Other Laws

As recreational pot is made available beginning January 1, interested buyers and users alike ponder why pot use has became more complicated now that it is legal than when it was still prohibited.

While both the recreational and medicinal use of cannabis was legalized by Amendment 20 and 64 respectively, no law, according to the State courts, has yet been passed limiting employers’ right to dismiss workers tested positive for marijuana use.

How does something legal become illegal? This is the question that hounds thousands of employees of Colorado companies that remain adamant in not excluding marijuana as a cause for dismissal in the latter’s drug testing policies. This is the paradox created when a rather audacious State initiative conflicts with a time-honored federal law.

The Curious Case of Brandon Coats

No case can better illustrate this paradox than the story of Brandon Coats, a quadriplegic who needed medical pot to alleviate the pain that hounded him since a car accident years past. He did everything as the law says. He registered in the state’s Medical Marijuana Registry, he never went to work intoxicated, and he honestly admitted to pot use when he was tested. For all his law-abiding activities, he was fired.

He sued and he lost. The trial judge said that he can’t assert his right to use medicinal marijuana to sue an employer, but only as an affirmative defense in a criminal case. The Colorado Court of Appeals affirmed, further adding that the state did not intend the recent law legalizing pot use to prohibit employers from firing employees on the basis of a still federally illegal activity. The lone dissenter in that 2-1 decision argued exactly the opposite, that the state did not intend the marijuana law to allow employers to dismiss employees for engaging in a lawful activity.

The case of Coats currently languishes in the Colorado Supreme Court. Six months have passed and the justices still haven’t accepted it for review. In the meantime, Coats may continue legally using pot, but without a job at that.

False sense of being legal

Coats’ case which arouses confusion and curiosity is not the only one in the country, it seems. Marijuana users have cried foul over the paradox that has started spreading like a hippie trend over states which have allowed legal use of Marijuana.

In Colorado alone, there are 127,816 registered medical marijuana users who are also employees. This same number is at the risk of being summarily dismissed even if or precisely because of legal pot use. Before Coats’ case, many thought that the Colorado Lawful Off Duty Activities Statute will cloak employees from the employers’ firing range. But as we have learned, the Court of Appeals decision shattered this false sense of security by saying that pot use must be legal both under State and Federal Laws in order to ensure job security.

Other states are plagued with the same paradox. Washington, the other state that allowed recreational marijuana use, also found that employees are not immune to dismissal even under a medical marijuana law. In Battle Creek, Michigan, a Wal-Mart cancer survivor also suffered the same fate as Coats. It happened in California. The Supreme Courts of these states have all ruled that a legal pot law cannot shield employees from being fired even when the pot use happened off duty.

Many believe that the trend will continue to spread until federal law catches up with state laws. Companies are not going to change their drug testing policies unless the law asks them to. In the meantime, legal pot use remains a paradox.

Do you have questions about your workers’ compensation? Kaplan Morrell’s attorneys have been helping employees with their compensation-related concerns for more than 15 years. Call us at 303-780-7329. Trust only the best and experienced. Contact us today and stand up for your right!