Fight Over Marijuana Regulation Taken to Colorado Supreme Court

     DENVER (CN) - Colorado's attorney general said in an amicus brief to the state supreme court that Coloradans do not have the right to use marijuana off the job if their company has a zero-tolerance drug policy.
     Attorney General John Suthers filed the brief on May 21 in support of Dish Network, which fired Brandon Coats, a quadriplegic medical-marijuana patient who tested positive for marijuana.
     There are no allegations that Coats was high at work; however, the company said it has a zero-tolerance policy on weed.
     Coats claims his off-the-job marijuana use should be protected by Colorado's Lawful Off-Duty Activities Statute. The law prevents companies from firing workers for doing things off the job, such as smoking cigarettes, which are legal.
     Dish Network claims that marijuana use cannot be considered legal because it is illegal federally.
     Last year, the Colorado Court of Appeals upheld Dish Network's firing of Coats.
     The case is the first time the scope of marijuana legalization has been presented to the Colorado Supreme Court.
     The attorney general's brief came just weeks before New York Times columnist Maureen Dowd wrote two articles about a pot trip gone bad in Colorado, and the need for the state to regulate how consumers use marijuana.
     The attorney general wrote in his 23-page brief: "The eyes of the nation are watching as Colorado carries out an experiment by relaxing state laws on marijuana. Contrary to popular perception, Colorado has not simply legalized marijuana for medical and recreational purposes. Instead, its citizens have adopted narrowly drawn constitutional amendments that decriminalize small amounts of marijuana for patients with a debilitating medical condition, at issue in this case, or for recreational use by adults over the age of 21.
     "There is much at stake in the effective implementation of Colorado's challenging legal framework to regulate marijuana. And with the federal government not acting to relax the absolute prohibition on possession and use of marijuana it is all the more necessary to interpret Colorado's laws in a predictable and clear fashion. The State of Colorado has an interest in both the application of employment laws to its employees and in the interpretation of the constitutional provision governing medical marijuana. It is the state, after all, which implements and enforces the laws and regulations governing medical marijuana in Colorado.
     "Colorado has a strong interest in this Court's ultimate conclusions regarding the Lawful Activities Statute as it relates to the use of marijuana. An interpretation of this statute, as contemplated in the dissenting opinion below would negatively affect the state and other employers. Zero tolerance drug use policies are employed by many employers, including the state, both as required by federal law in certain cases and as a matter of prudence. For these reasons, this brief will address both statutory and constitutional issues." (Citations omitted.)
     The attorney general said that should the state supreme court reverse the appeals court decision, it could affect public safety as well as employers and employees.
     "Thousands of these employees, particularly those in the Department of Corrections, Public Safety and Transportation, must be subject to limits concerning on-or off duty marijuana use because they serve missions critical to the welfare, safety and protection of Colorado's citizens. The state cannot risk that these employees will engage in the use of marijuana (medical or otherwise), that may impair their ability to perform their duties. Having this Court, without express legislative intervention, extend the Lawful Activities Statute to the medical use of marijuana would undercut many employers' workplace drug use policies," the brief states.
     Suthers also claims that many employers would be forced "to conduct intrusive investigations into the personal life of an employee," and it would be difficult for any employees to drive for business reasons because "regulations require the state and other to comply with drug and alcohol testing rules governing Commercial Driver License drivers."
     Suthers says in the brief that even if the state supreme court reverses, employers will still be free to fire an employee for use of marijuana that was not truly off premises and while they were off work.
     At least five other organizations have filed briefs in either support of Coats or Dish. The Colorado Mining Association, The Colorado Defense Lawyers Association and the Colorado Civil Justice filed briefs in support of Dish. The Colorado Plaintiff Employment Lawyers Association and the Patient Caregivers Rights Litigation Project filed briefs in support of Coats.
     The Colorado Supreme Court has not announced when it will hear the case.