It’s Time to Enact Appropriate Job Protections for Those Who Legally Use Pot

Many observers were shocked and saddened when Brandon Coats, a quadriplegic who is authorized to use medical marijuana under Colorado state law, was fired from his job with Dish Network in 2010 after a positive drug test. Dish failed to make an exception for Coats, who used marijuana while off duty to control his seizures, and the company insisted on his being fired, leaving Coats no choice but to challenge this issue in court.

Specifically, Coats claimed that his conduct should have been permitted under the state’s Lawful Off-Duty Activities Statute, which makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful,” away-from-work activities. But the trial court, followed by the Court of Appeals and now the Colorado Supreme Court, have all ruled that the statute only protects conduct that is legal under both state and federal law — and therefore offers no job protection to Coats.

“Therefore, employees who engage in an activity, such as medical marijuana use, that is permitted by state law but unlawful under federal law are not protected by the statute,” Justice Allison H. Eid wrote in the opinion.

This case highlights one of the most pressing issues that needs to be addressed in the states that have legalized medical cannabis use — and the states that have adopted full legalization for all adults, as well. Although employees are protected from arrest and prosecution under state law by these various laws, they remain vulnerable to employment discrimination in almost all states.

Simply put, if an employer wants to insist on what they frequently call a “drug-free workplace,” they are legally permitted to do that — regardless of the unfairness this policy may cause, because we must note that they do not apply those same standards to off-job alcohol consumption or the use of prescription drugs.

Most Americans would strongly support the right of an employer to fire anyone who comes to work in an impaired condition. But smoking marijuana leaves one mildly impaired only for about an hour and a half; certainly smoking marijuana in the evening, or on the weekend, would have no impact on the employee who comes to work the following day.

Effort renewed to add PTSD to Colorado medical marijuana list
(Craig F. Walker, Denver Post file)
What we really need is for employers in these legalized states to become responsible corporate citizens and to do the right thing: Stop penalizing employees, absent a showing of impairment on the job. But absent that voluntary shift in policy, the obligation is now on those of us who favor marijuana legalization to go back to the state legislatures in states that have legalized cannabis, either for medical use or for all adults, and enact appropriate job protections for those who use marijuana legally under state law.

Before being allowed to fire an employee who tests positive for THC, the employer must be required to demonstrate on-the-job impairment. Just as we do not permit someone to be fired for reason of their gender, religion or race, neither should we permit an employee to be fired simply because they elect to use marijuana legally under state law, without a showing of actual on-job impairment.

Otherwise we are requiring many medical-use patients to choose between relieving their pain and suffering and keeping their employment. And we are allowing employers to fire good, hard-working, loyal employees for off-the-job activities that are totally unrelated to their job performance.

And that is simply unfair, and it cannot be allowed to stand. So let’s get to work and fix this problem.

Keith Stroup is an attorney, author of “It’s NORML to Smoke Pot: The 40-year Fight for Marijuana Smokers’ Rights” and founder of the National Organization for the Reform of Marijuana Laws, where he serves as legal counsel.


Op-ed: Coats v. Dish decision is a call for real change, says NORML founder

26 thoughts

  1. Good article,I just read about the same story in the magazine U.S. News and World Report. The big difference between your article and their’s was misinformation. U.S. NWR stated that marijuana intoxicating effects remains with the user as long as their is THC in the user’s system which could be 30+ days depending on how often used. This is simply not true, science has informed us that the intoxicating affects of mj metabolizes faster than the intoxicating affects of alcohol. As you noted, a person’s average “high” lasts one to one and half hours. Until mass media reports the truth this fight for freedom is going to continue to be an uphill battle ripe with bias and misinformation. Being a vet this sounds very familiar, for the first thing lost in war is the truth. I want to remember the “War on Drugs” as only the name of a good band. Keep up the good work, thank you.

  2. I don’t think the Fourth Amendment, in general now, is too secure:

    The right of the people to be secure in their persons (blood, breath, or urine), houses (away-from-work activities in this example), papers (work permit or similar), and effects (weed stash), against unreasonable searches and seizures, shall not be violated (in other words is protected), and no Warrants shall issue, but upon probable cause (are all employees probably users?), supported by Oath or affirmation (in front of a real judge, not amongst business owners), and particularly describing the place to be searched , and the persons (in other words the law must proceed case by case) or things to be seized (work permit).

  3. To reduce redness, and swelling, I suggest that prohibitionist members of the Colorado Supreme Court, and employers that violate the civil rights of employes with drug tests fill a toilet with crushed ice, kneel down and put their heads in it.

  4. Spot on, Keith! Once again, you are right on the money.

    These same state legislatures have to enact laws that protect employee rights by having to show impairment on the job.

    As David points out U.S. New and World Report published ” Coats didn’t use marijuana at work, but pot’s intoxicating chemical, THC, can stay in the system for weeks.”

    Wow, that must have been some magic marijuana that gets keeps you stoned for weeks! This is the kind of prohibitionist bullshit that makes it sound like cannabis users are high as long as it’s in their system. Implying such a thing is nothing short of lying by omission because they don’t tell you what Keith mentioned, namely that the high lasts only about an hour and a half. Such a lie would have readers believe that since cannabis is in your system for weeks that people are subsequently high for the entire time, and consequently are impaired and thus should be fired.

    The whole definition of impairment from cannabis needs to be redefined, reframed.

    It’s looking like the science, brain scans showing someone under the influence versus somebody not under the influence, color-coded, or something have to be used based on potency and time span to show that a person is no longer high the next morning, let alone the entirely preposterous notion that they’re still high weeks later.

    This shit has to change at the federal level, but DC politicians and their surrogates are too busy jockeying for the upper hand, gathering and slinging mud and stabbing each other in the back. And the corporate citizens are prohibitionist idiots, in this situation. And the IRS gets to f*** the cannabis community, and the financial industry gets to discriminate legally against good people.

    When are other network tv stations going to take the plunge and educate and advocate for legalization at both the state and federal level? NBC did it with Harry Smith’s Growing Hope special. They’re supposed to be coming out with a cannabis sitcom this fall. I guess the other networks have no common sense, or they’re like oh let’s see how the NBC experiment goes, like Hillary and others are like oh let’s see how legalization goes in Colorado, it’s great that states can be bastions of experiments like this with marijuana, and blah, blah, blah.

  5. I think we are trying to talk reason to unreasonable people…..we should focus our efforts on developing a urine or hair test that will detect alcohol metabolites for weeks or months….then they will be ready to talk….. a synonym for hypocrite is idiot

  6. Colorado Supreme Court is not with its people. Boycott that evil Dish Network company so they will beg for forgiveness. Its the only way to win.

  7. Job protection would be nice, especially when an employer has no proof of impairment.

    But hey, while we’re on the topic of greater protections for those who remain solidly within the confines of the law, how about some help for gun owners? It’s absolutely ridiculous how many medical cannabis patients are forced to choose between their medicine and their firearms.


  9. They need to get rid of company drug testing all together. It is way too intrusive of an act. It is sad that people don’t find it offensive that they have to be drug tested in the first place.
    I am curious to know if there were actual Drug testing companies in Colorado that pushed companies like Dish to retest high target individuals just so they could make a profit.

    I am going to put a positive spin on this sad story though, This event only shows that we have to keep fighting till MMJ is no longer a federally banned substance.

  10. This simple definition of marijuana in the Controlled Substances Act will stop the employers from firing their workers like Mr. Coats for responsibly using cannabis away from the job site:

    The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L.

    For the benefit of responsible cannabis users like Mr. Coats, this year is a good time for people to call for Congress to enact this constitutionally sound reform to the definition of marijuana in the CSA.

  11. I would recommend that a union of marijuana users form and boycott organizations that discipline employees who use pot off the job. We now have clout in our numbers and believe me companies, especially smaller ones will choose to survive rather than impose their misplaced view on off duty use.

  12. I lost a job 2 months ago because of a random drug test. I worked there for 15 years and had never been drug tested except for 1999 when I was originally employed. My previous employer received less expensive insurance if they drug tested 15 people a month. I had been working my entire shift without any problems and have never had it job performance concern related to incompetency.After the test they even let me complete my shift! I have a medical marijuana card from the state of Michigan. I hadn’t smoked for 8 hours before I came to work. Someday I hope there’s a class action lawsuit against all these employers and the money hungry insurance companies.Unfortunately there’s been so many lies spread about cannabis that it will take years for the truth to be known.

  13. We need to end tax breaks and subsidies for drug testing is what we need to do. It is entirely useless for anything but weed, and actually causes more hard drug use as a result. Replace drug testing with impairment testing, which had the benefit of catching all impairment and not just that which is caused by something illegal (that actually has a negligible effect on the workplace at best.)

    If companies want to ensure workplace safety with a method that doesn’t work, let than pay for it out of pocket themselves. No writeoffs, no breaks and no subsidies. See how long they keep wasting money when it is their own.

  14. @Todd: the common b.s. argument is “private property, 4th amendment doesn’t apply”. But all drug testing is paid for by the taxpayer, and we also pay for the incentives to push employers to accept this taxpayer funded gift. That is a clear subcontracting of civil liberties violation to the private sector. If this is a private company issue, then companies should have to use their own money. I mean, if I hired a hitman, I would still go to jail and be culpable for the crime. Why should the gov be allowed to hire the privateers as civil rights assassins–only worse, because they are using the victims money to pay the hitman?

  15. Whenever I see something like the unfair and unjust ruling against Coats, I realize how far we have NOT come from Reefer Madness. And it will even take more than legal victories. Attitudes may be more liberal marijuana use, but have they changed that much regarding the user? I don’t think so. We still use the same stereotypes we used thirty years ago such as pothead,slacker, and freak. These terms are often used by the users themselves, which unfortunately encourages the use of these stereotypes. I will believe things have really changed when I see these events:
    1. You attend a social gathering where a joint or marijuana vape is offered as an option to a martini.
    2. Medicare pays for medical marijuana.
    3. Testing for marijuana is against the law for any job or driving, based on the fact that THC stays in the system for weeks.
    4 We freely discuss our usage with people we hardly even know, just as we might alcohol now.

  16. I believe Demonhype hit the nail on the head; private employer discrimination if off the job drug influence is a private choice and must NOT be subsidized by tax payer funds.

    What are the “long term effects” of off the job marijuana consumption verses, let’s say, alcohol?
    Next day, alcohol dehydrates the brain and blood, so although no trace of alcohol may be found, the worker is less competent, less productive and possibly unfit to work at all.
    Next day for marijuana? The body, mind and soul is replenished with essential protein, neuroprotective cannabinoids and general nourishment. Because cannabis is traceable stored in the fat cells and neurodegenerative diseases and symptoms are mitigated, prevented and /or treated, the worker is now more replenished, energized and conscious for a safe and productive work day.

    What we need to do is challenge Apple and all these new wristband health tracking device companies to sponsor a “Cannabis v. Alcohol challenge and monitor the health and productivity of competitors who drank alcohol or consumed marijuana off the job the previous night. Then get NATGeo, CNN or whoever will promote the show to turn it into a series challenge for everything v. Marijuana, including prescription meds, energy pills and vitamins.

    That oughtta get some positive press over the issue.

  17. I think it would be fantastic if all cannabis consumers in America would agree to boycott Walmart and Dish Network. They seem to have no clue just how many of us are, or have been, their customers.

    Obvious to most of us is the fact that firing someone just because they use marijuana in their off hours is blatant discrimination and that is something that should not be tolerated.

    Is this something that NORML is willing to pursue and promote?

  18. been waitin on this subject! it has not been brought up real often in my opinion! kind of the cart before the horse really. in legal states one cannot partake if testing is still happenin folks. where is saliva testing now in all of this? any new breakthroughs ?

  19. If eployees time off is governed by the employer, then the Off-The-Clock time needs to be compensated with overtime!!!!!!!!

  20. I think we all know by now that most corporations value the bottom line over just about anything else.

    Boycott. Cancel with Dish and make sure you write the corporate office and tell them why you can’t in good conscience allow them to profit off of you when their policy so soundly clashes with your belief.

  21. I would be happy to boycott Dish Network but it doesn’t make sense for me to switch my service if I’m the only one. So, again, I ask is NORML willing to pursue and support this? Individually we are pretty powerless but all of us together can be very strong!

    To hell with mindless zero tolerance policies that do more harm than good which is exactly what the Dish policy accomplishes; same thing with Walmart.

  22. Guys, I hate to be the bearer of bad news, but something that really doesn’t bode well is that in some cases employers CAN treat off the job, completely legal substance use as grounds for termination. For example, there’s a hospital nearby that actually does nicotine testing, and it tests for a long period beforehand, along with a test that checks the cheek cells for abnormalities that indicate a person is a heavy drinker. Both can be grounds for termination after an initial warning. The nicotine thing specifically was challenged, and of course the courts, as often seems to happen, went with the big guys and said no, that’s totally cool everyone! So now it’s open season in that regard. Unfortunately at least in this case impairment has nothing to do with it, obviously; they try to pretend it’s about promoting a healthy lifestyle, but come on guys, we aren’t idiots. I think we all know it’s more about the fact it’s way cheaper to get insurance if you can guarantee that you can keep all your employees from smoking.

    So guys, if the courts are cool with letting employers can people for smoking tobacco, or drinking in a certain way even if the test is specifically designed to test for heavy alcohol use regardless of when it happened, then the chances people are going to get protections for weed is fairly slim; maybe if it got rescheduled we’d at least have a chance for medical use, which would sure be a step in the right direction.

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