15 June 2015

Colorado high court upholds firing of quadriplegic for off-the-clock medicinal marijuana use

The Colorado Supreme Court ruled today that a private employer was justified in firing a quadriplegic worker because he had used medical marijuana at home to control muscle spasms. The court concluded that, despite a state constitutional amendment legalizing marijuana in Colorado, and despite a federal policy prohibiting the prosecution of medical marijuana patients in the state, it was technically not “lawful” under the federal Controlled Substances Act (CSA) for the worker to use marijuana off the clock.

The case concerned Brandon Coats. According to a 2014 article in the Huffington Post, Coats was injured at the age of sixteen when he was a passenger in a car that crashed into a tree. The accident paralyzed more than 80 percent of his body, and he has suffered from severe involuntary muscle spasms and seizures ever since. At first, he used prescription drugs to control the spasms, but these soon became ineffective. He later found, however, that smoking small amounts of medical marijuana would halt the spasms and allow him to go to work without pain. He joined Colorado’s medical marijuana registry in 2009.

At the time, Coats worked as a customer service representative for satellite television provider Dish Network, L.L.C. The record did not suggest that Coats ever came to worked stoned, and the company acknowledged that it had no complaints about his performance. The company does perform random drug tests, however, and one of its tests indicated that Coats had been exposed to tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana, within the previous forty days. Dish immediately fired him.

Coats then brought suit under Colorado’s Lawful Activities Statute, Colo. Rev. Stat. section 24-34-402.5. This statute prohibits employers from terminating employees for “engaging in any lawful activity off the premises of the employer during nonworking hours.” Coats argued that, because Colorado voters had amended the state’s constitution in 2000 to permit the use of medical marijuana, it was lawful for him to take medical marijuana in his home during nonworking hours. The amendment provides an affirmative defense to criminal prosecution for violation of state marijuana-possession laws for certain individuals suffering from a “debilitating medical condition” for which a physician has prescribed marijuana. See Colo. Const. art. XVIII § 14. It also requires the return of any medical marijuana plants seized by law enforcement.

The Arapahoe County District Court disagreed and dismissed the case. Judge Elizabeth Volz ruled that the constitutional amendment did not actually make medical marijuana legal under state law, found that Dish was justified in terminating Coats, and ordered Coats to pay Dish’s attorney fees as though it had prevailed on a motion for failure to state a claim for relief in a tort action. In 2013, a divided panel of the Colorado Court of Appeals affirmed in part and reversed in part. The appellate court suggested in dicta that the use of medical marijuana was “lawful” under state law, but it held that it was not “lawful” under federal law. Coats v. Dish Network, L.L.C., 2013 COA 62, 303 P.3d 147 (2013). Possession of marijuana for any purpose—medical or otherwise—has been effectively illegal under federal law since 1937. Because Colorado’s Lawful Activities Statute was not limited to state laws, the majority held that an employer could fire an employee for violating federal laws away from work. The court did reverse the award of attorney fees, however, ruling that an action under the Lawful Activities Statute was not a tort claim. Judge John Webb dissented from the majority and concluded that the reference to “lawful activities” should be measured solely by Colorado law. Because he further concluded that possession of medical marijuana was indeed legal in Colorado, he would have reversed the lower court.

The Colorado Supreme Court granted certiorari review and affirmed in a short opinion. The court noted that marijuana remains illegal in all forms under federal law, citing the United States Supreme Court’s holding in Gonzales v. Raich, 545 U.S. 1 (2005), which had concluded that supremacy clause requires federal statutes to preempt conflicting state laws pertaining to marijuana regulation. Because of this, Coats could not show that the off-duty use of medical marijuana in his home was “lawful,” regardless of its legality under state law or its medical necessity. The court decided the issue only based on federal law and declined to address whether medical marijuana use is “lawful” under state law. Justice Allison Eid authored the unanimous decision. Justice Monica Márquez did not participate. The full text is available online at the court’s website and reported at: Coats v. Dish Network, L.L.C., 2015 CO 44, ___ P.3d ___ (2015).

In a footnote, the court acknowledged that the federal government itself would be precluded from prosecuting Coats. In its December 2014 appropriations bill, the United States Congress prohibited the Department of Justice from using any federal money to prevent Colorado and states with similar medical marijuana laws from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. n. 2, quoting Consolidated and Further Continuing Appropriations Act, 2015, Pub. Law No. 113-235, § 538, 128 Stat. 2130, 2217 (2015). This followed an earlier announcement by the Department of Justice stating that it would not prosecute cancer patients or those with debilitating conditions who use medical marijuana in accordance with state law. Id. This did not convince the court to allow Coats’s claims to proceed, however; the court simply stated that “marijuana is still a Schedule I substance, and no medical marijuana exception yet exists in the CSA.” As such, medical marijuana use remains unlawful.

In short, the court recognized that Coats broke a law that no one enforces while he was off-the-clock and in his own home. His marijuana use did not hinder his ability to work; on the contrary, it gave him enough of a respite from pain that he could rejoin the workforce and hold down a steady job. And yet, the court ruled that Coats has no remedy against Dish Network for what would otherwise be a blatant violation of state employment discrimination laws. This serves no purpose and could open the door to pretextual termination of disabled Americans and other minority groups. Indeed, some commentators say that it was racism against blacks and Hispanics that first prompted the federal government to outlaw marijuana use in the 1930s.

This ruling is also a disappointment for those who depend on medical marijuana to live a productive life. The medicinal effects of THC have been known for centuries, and recent studies have suggested that cannabidiol (CBD) from marijuana plants may help to stop cancer and reduce epileptic seizures, among other benefits. Nevertheless, the federal government has been slow to reassess its marijuana laws, though Senator Rand Paul recently introduced a bill that would, among other things, remove medical marijuana from the CSA, reclassify the plant as a Schedule II substance with potential medicinal value, remove CBD and other cannabinoids from the federal definition of marijuana altogether, and relax restrictions on financial institutions dealing with marijuana businesses. The bill has passed the Senate and is currently being reviewed by a House subcommittee.

Although Senator Paul’s bill may be a step in the right direction for the medical marijuana community, some advocates warn that this legislation may be misguided. There is mounting evidence that minute amounts of activated THC may be required in order to achieve successful synergistic results with CBD; there are also many other non-psychoactive components to the marijuana plant, such as Cannabigerol (CBG), Cannabidiolic Acid (CBDA), and Tetrahyrocannabinolic Acid (THCa or unactivated THC) that may have unquantified medical benefits. Though such changes in federal law would offer no relief to Coats in his suit against Dish Network, they would likely protect other individuals in similar situations that may arise in the future.

In addition to the Coats ruling, the supreme court also announced today that it would review te ruling in People v. Crouse, 2013 COA 174, ___ P.3d ___ (2013). In Crouse, the El Paso County District Court had ordered the return of medical marijuana plants to a patient under the same constitutional amendment at issue in the Coats case. In a split decision, the court of appeals affirmed this ruling and held that the CSA was not so broad as to preempt this provision of the Colorado Constitution. Judge Webb, who had dissented in support of Coats, wrote the majority opinion, in which Judge Stephanie Dunn joined. Judge Steve Bernard dissented and argued that the government’s return of the plants was an illegal distribution of a controlled substance under federal law, i.e. that local police could be prosecuted as drug dealers merely for carrying out a state law requiring the return of improperly seized property. The Colorado Supreme Court’s decision to review Crouse on the same day that it announced Coats suggests that the justices may apply a similar rationale and conclude that the CSA prohibits state law enforcement from returning medical marijuana, regardless of whether it was properly taken.

Once it grants a petition for certiorari, the Colorado Supreme Court takes an average of two years to issue an opinion. Thus, it may be some time before the court provides further guidance on this subject. In the meantime, the conflict between state and federal law will continue to cause uncertainty for businesses and employees in the state.