Fired for Toking
Could You Lose Your Job for Smoking Legal Pot?
Veterans may be lining to buy legal marijuana, but others who fear being fired for testing positive are staying home. How one court case could free them to ‘recreate’ responsibly.
Please let’s not have Eastern establishment media blowhards define the narrative about Colorado’s nascent experiment with marijuana legalization. It’s not just that their cramped, antiquated views are objectively wrong, which they are. It’s that they have no standing, none at all, to make moral or ethical or even legal or political judgments about the statement the people of Colorado and the state of Washington made in November 2012 and since about manner in which they choose to recreate and the ceaseless futility of the nation’s marijuana policies.
Armchair moralists in New York or Washington aren’t tribunes of some wizened truth. They are instead avatars of the hypocrisy that lies at the heart of the debate. Of America’s loving embrace of alcohol, the pervasiveness of television commercials sensationalizing its use, the terrible costs of our failed drug war, the racial inequalities of enforcement, the drug’s indisputable medicinal uses, they offer barely a word. What could they say? That we all are bound still and forever by the dubious choice our grandparents made 75 years ago to legally distinguish marijuana from whiskey? That all those cancer patients aided all those years by pot are lying? To paraphrase Denver’s marijuana website, the answer is no.
The truth is that the morality of marijuana use cuts in many directions—and does not belong solely to wealthy baby boomers afraid to allow brave new facts to challenge old biases. And the truth in Colorado is that there will not be some grand rush to ingest pot because there cannot by law be such a grand rush. For every earnest veteran standing in line to buy marijuana there are 10 nurses, or accountants, or bus drivers, or other responsible, respectable members of society who cannot use lawful marijuana for fear of losing a job, or an apartment lease, or custody of a child, or some government benefit. This is what happens when a bold state initiative conflicts with stale federal law.
The reasoned approach to the new rules—and the limits placed on them by society—were the subject of a piece Sunday in The Denver Post:
“The rapid changes in Colorado’s marijuana laws have caused many people across the state to re-evaluate their relationship with cannabis. Those who are curious about marijuana and plan to try it include people who have never used it, as well as those who smoked decades ago, before marriage and kids. They say they now plan to buy some marijuana because it's easy, convenient and legal.
But the continuing stigma surrounding marijuana use—not to mention the very real risks to their jobs—keeps many cannabis newcomers from stepping fully into the light. A 52-year-old man who plans to try pot for the first time didn’t want any part of his name published. ‘My hesitation comes from 50 years of negativity associated with drug use and concern about my name being in a news report,’ he wrote in an email.”
So if you want to listen to someone who is a worthy symbol of what’s happening here, if you want to hear the story of someone at the core of the debate over our evolving relationship with pot, pay attention instead to the story of Brandon Coats. Here is a law-abiding man, a profile in honesty and courage, who symbolizes both how far the nation has come in accepting the use of cannabis and how far it still has to go. Here is a man whose story reminds us that we will have to go forward or go back on marijuana because we cannot long remain where we are, in limbo, with our judges caught between contradictory directives from differing jurisdictions.
Coats is a quadriplegic who lives in Colorado. In 2009, he was placed on the state’s Medical Marijuana Registry. At the time, he had worked for two years as a customer service representative for DISH Network. It was, you might say, a perfectly suitable job for someone suffering from a debilitating medical condition like his—and his employers routinely gave him average or satisfactory reviews. Coats earned a salary, paid taxes, and responsibly used medical marijuana in his home to ease his undeniable pain. He was never intoxicated at work—the company never even suspected or accused him of that—and when it came time to be drug-tested, he candidly told his testers of his pot use.
And that’s how it came to pass that Coats was fired, in 2010, after one of those tests predictably revealed the presence in his body of THC, the chemical compound found in marijuana that is responsible for many of the drug’s most salutary effects. The company had the right to conduct random drug tests, company lawyers argued, and to terminate employees who tested positive, because medical marijuana use in Colorado was not a “lawful activity.” How? Because, they argued, any activity that is “unlawful” under federal law could not by definition be “lawful” under state law. That was true, they said, even without proof of Coats ever being high on the job.
Coats sued after he was fired. His trial judge quickly dismissed his case. There is no right to medicinal marijuana, the judge ruled, only the right to use the state’s medical marijuana statute as an affirmative defense to a criminal charge. The Colorado Court of Appeals, in a divided opinion, also rejected Coats’s arguments. In so doing, the appellate court concluded that Colorado did not specifically intend to forbid employers to terminate their workers for federally prohibited off-the-job activities. A dissenting judge disagreed, arguing instead that Colorado did not specifically intend to permit employers to fire their workers for activity the state considered “lawful.”
Last July, Coats asked the Colorado Supreme Court to take the case. Six months later, the state justices still have not declared whether they will accept it for review. This issue, and not some hoary moral question about pot use, will drive this year’s legal debate over the Colorado initiative. If the Colorado Supreme Court reverses these lower court rulings, many more Colorado residents will be free to “recreate” responsibly the way they want to. But if the Colorado Supreme Court upholds the lower court rulings, the state’s marijuana legalization will remain beyond the reach of the people to whom it should be directed—those adults responsible enough to have and to hold jobs.
So Coats has a legal right to ingest cannabis for medicinal purposes but no legal right to have his employer recognize that right in a way that provides him with a reasonable remedy. In this way his case and his cause have forced state and local officials to confront another one of the truths that surrounds this story. It is not just another court fight over the rights and responsibilities of employers and employees, although it surely is that, as well. It’s also about figuring out a way for the law to account fairly for the different rates at which alcohol and marijuana leave the human body. Alcohol comes and goes in a matter of hours or days. THC can stay for weeks.
And that means, for now anyway, a Colorado employee can get drunk as a skunk on a Saturday night and have no fear on Monday of losing her job to a drug test so long as she shows up sober and ready to work. And it means that the employee’s coworker cannot have even a puff of pot on that same Saturday night without fearing that a subsequent drug test will cost her a job, even if she also shows up sober and ready to work on the following Monday. That’s a patent inequality that is as easy to explain as it is difficult to justify: a “zero-tolerance” drug policy that employers conveniently apply to some lawful drugs but not to others.
Coats did everything right. He registered. He had a valid medical reason for doing so. He used responsibly. He was honest with his employers. And yet he was fired anyway. That’s why so many sensible Coloradans today continue to be reluctant spectators instead of eager participants in the state’s grand experiment. And it’s also why the experiment cannot fully succeed until federal law is updated to reflect accurately what we’ve learned about marijuana in the past few decades. Companies such as DISH aren’t going to alter their drug-testing policies voluntarily to account for legal marijuana use. They are going to have to be forced by federal law to do so.
In Colorado, the ACLU has argued that employees should not be fired for evidence of past pot use, which is what the drug tests now show, but for evidence of current cannabis use or impairment, which the drug tests now do not necessarily show. Colorado lawmakers, and ultimately officials in the Obama administration, are going to have to address that dichotomy. Until they do, Colorado deserves credit for candor, at least, and for offering a solution to a problem to marijuana use that federal officials—and generations of judges and prosecutors—have failed to solve. That’s not something to fear or fret over. That’s something, like Coats’s honesty, worth applauding.