Court considers legality of firing for pot use off job

DENVER -- Pot may be legal in Colorado, but you still can be fired for using it.

Now, the state's highest court is considering whether workers' off-duty use of medical marijuana is protected under state law.

Colorado's Supreme Court on Tuesday heard arguments in a case involving Brandon Coats, a quadriplegic medical marijuana patient who was fired by the Dish Network after failing a drug test in 2010.

Coats said he never got high at work. But pot's intoxicating chemical, THC, can stay in the system for weeks.

Coats says his pot smoking is allowed under a little-known state law intended to protect employees from being fired for legal activities off the clock. But the company argues because pot remains illegal at the federal level, medical marijuana isn't covered by the state law.

The case is being watched closely around the country and could have implications for pot smokers in the first state to legalize recreational sales of the drug. Though the Colorado case involves medical marijuana, the court's decision could affect how companies treat employees who use the drug recreationally.

Tuesday's arguments highlighted the clash between state laws that are increasingly accepting of marijuana use and employers' drug-free policies that won't tolerate it.

"This case need not be an endorsement or an indictment of medical marijuana" but a chance to set standards for employee conduct, Dish attorney Meghan Martinez told the justices, who could rule in the coming weeks or months. "It's a zero-tolerance policy. It doesn't matter if he was impaired or not."

Coats, 35, was paralyzed in a car crash as a teenager and has been a medical marijuana patient since 2009, when he discovered pot helped calm violent muscle spasms. Coats was a telephone operator with Dish for three years before he failed a random drug test in 2010 and was fired. He said he told his supervisors in advance he probably would fail the test.

Coats' case comes to the justices after a trial court judge and Colorado's appeals court upheld his firing, saying pot can't be considered lawful if it is outlawed at the federal level.

"We're getting very confused and mixed messages from everywhere," Coats' attorney, Michael Evans, said.

He asked the court to issue a narrow ruling that would apply to people such as Coats: those in nonhazardous jobs who are not impaired at work and whose employers don't have federal contracts that could be jeopardized.

Twenty-three states and Washington, D.C., allow medical marijuana. Colorado and Washington state allow recreational sales, though court cases so far have involved medical patients.

Colorado's constitution specifically says that employers don't have to amend their policies to accommodate employees' marijuana use. But Arizona law says workers can't be punished for lawfully using medical marijuana unless it would jeopardize an employer's federal contract.

State Supreme Courts in California, Montana and Washington state have all ruled against fired patients. A lawsuit filed by a physician assistant in New Mexico who said she was fired for using medical marijuana, which helps with her post-traumatic stress disorder, is still pending.

Denver labor and employment attorney Vance Knapp said a Coats win "would turn employment policies into chaos." Other states with lawful-activity laws could see them challenged as a result.

Coats, who has been unable to find steady work because of his marijuana use, said after the hearing that he was hopeful he would prevail. At the very least, he said, the court will offer clarity on the issue.

"I'm not going to be able to get a job in the near future, so if I can fight the fight and hopefully change that, that's what I am going to do," he said.

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