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Brandon Coats, who’s been using a wheelchair since an accident paralyzed him at age 16, lost his job as a phone operator with the Dish Network when he tested positive for marijuana in a workplace drug screen. A doctor had authorized him to use marijuana for muscle spasms in his back after his body became inured to the strongest level of prescription drugs.In Colorado, where Coats lives, use of medical marijuana is legal—enshrined in the state constitution, in fact—but that wasn’t enough to save his job. He’s taking legal action now, and one of the weapons he’s using is a Colorado law barring employers from terminating employees based on activities on their own time and away from the workplace.
Colorado is one of nine states with these so-called “lifestyle discrimination” laws on their books.
The question is: To what extent will those laws, and other statutory protections for medical marijuana users, affect the litigation that might follow when medical marijuana patients lose their jobs?
Here’s a look at some of the protections employees will invoke in that situation—provisions that employers should keep in mind when crafting workplace drug policies.
Lifestyle discrimination? Colorado’s law, like those of California and North Dakota, bars employment discrimination based on lawful activities. Similar laws in Illinois, Minnesota, Montana, Nevada and North Carolina bar discrimination based on employees’ use of lawful products. New York’s statute prohibits reprisal for a broad range of activities, including legal use of consumable products and legal recreational activities.
Colorado’s statute bars employers from terminating an employee based on the employee’s lawful activity off company property and on their own time, unless the employee’s activity was job related or created a conflict of interest with the job (Col. Rev. Stat. 24-34-402.5).
Neither exception applies in Coats’ case.
“We’ll argue that so long as the employee is not using during work hours, does not have drug paraphernalia at work, is not on company property and is not doing a hazardous job, then he shouldn’t be terminated,” said Michael Evans of Denver law firm Benson & Case, who is representing Coats. “The question is whether [his marijuana use] was a lawful activity off the premises. We say it is.”
No court in a medical marijuana state that has a lifestyle discrimination law on its books— California, Colorado, Montana and Nevada—has yet faced this issue.
Message for employers. “The message for employers in [lifestyle discrimination] states is that they should keep their hands off if [the behavior] doesn’t interfere with the workplace,” said Richard Meneghello, an attorney with Portland, Ore., firm Fisher & Phillips. “If the employee’s conduct at the workplace is safe, it should be okay. You really don’t want to know what your employees do while they’re not at work.”
“I don’t think the HR people at Dish Network are bad people,” said Evans. “I think any company has hard decisions to make with no support from case law. With case law, they would have some guidance.
“If the job were hazardous, like roofing or construction,” he continued, “employers should refrain from hiring a medical marijuana patient. If they have one working already, they should find a comparable nonhazardous position, like the requirement of the Family and Medical Leave Act.”
Explicit protections. In medical marijuana states Rhode Island, Maine and. to some extent, Michigan, the protections are right there in the medical marijuana statutes.
Maine’s, for example, says that an employer may not penalize or refuse to hire a person because the person is a medical marijuana patient. (Maine Revised Statutes Ch. 22 section 2423, subsection 6). Rhode Island’s language is virtually identical (Rhode Island General Laws 21-28.6-4).
Michigan’s is more complicated. It protects medical marijuana patients from disciplinary action by a business and being denied rights or privileges (Michigan Compiled Laws 333.26424). But it specifically protects employers from having to accommodate any employee working “while under the influence of marijuana.” (MCL 333.26427).
Michigan’s law was about to come before the Michigan Supreme Court in the case of Joseph Casias, a cancer patient and father of two who lost his job because of marijuana in his system. His attorney, Scott Michelman of the American Civil Liberties Union, interprets the Michigan law to protect medical marijuana patients from discrimination at work unless they violate the law by using marijuana in the workplace or by coming to work under the influence. In Michelman’s view, by explicitly rejecting the idea that employers should have to accommodate employees, lawmakers did not intend to allow employers to discharge employees who use marijuana privately and outside of work.
“The takeaway message for employers is that they should be very careful because the courts could find those laws to provide employee protections,” said Michelman.
What do you do if you’re an employer in a state whose law explicitly protects medical marijuana users?
The Maine law, and its Rhode Island twin, are “problematic for employers in that it appears to say that an employer may not take adverse action against [someone who has violated federal law by using marijuana],” said Attorney Michael McClory of Portland, Ore., law firm Bullard Smith Jernstedt Wilson.
Until now, courts have put their authority squarely on the side of employers. The high court in California, for example, has ruled that, because its law states that employers aren’t required to accommodate medical marijuana patients who use marijuana in the workplace, an employer doesn’t discriminate if it discharges an employee who uses medical marijuana only outside of work.
Potential risk. Meanwhile, employers still approach the issue of medical marijuana with caution, fearful of the liabilities that could follow if an employee/patient harms a third party.
“If an employee with a medical marijuana card drives a forklift and hurts a customer or a co-worker, the company could be sued for negligent hiring, negligent retention or negligent supervision,” said David Black, an attorney with the Seattle office of law firm Jackson Lewis. “If the employer had knowledge of the employee’s use of medical marijuana, they could be looking at tort damages including wage loss and emotional distress.”
Still, there aren’t a lot of cases like that being filed. Does that mean that the risk is low?“I’m not sure whether this means that the risk is low, but all it takes is one bad accident,” said Meneghello.Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years. She is a member of the Human Resource Association of Central Connecticut.
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