Wednesday, June 17, 2015

So Federal Law Matters in Colorado

In January 2015 I mentioned "Medical Marijuana" in the dispute Coats v. DISH Network. That case involved a severely injured person who works for DISH Network in Colorado. DISH has a drug-free workplace policy in place. In fact, according to some reports, DISH is required to maintain a drug-free workplace program in order to qualify as a bidder for certain business in which the federal government is involved.

The case began several years ago. Mr. Coats underwent a drug test at work as part of this drug-free workplace policy. The results of that test revealed the use of marijuana. No one disputed that the test was positive, or that the test was valid. Mr. Coats admitted using marijuana, but contended that he could not be fired for that offense for two reasons. First, his use of marijuana was on his own time, not at work. Second, he held a Colorado state license to use marijuana for medical purposes, rendering it legal or "lawful" under Colorado law. 

According to Coats, medical marijuana provides the only relief he receives from seizures. He has found no alternative treatment to relieve these symptoms or conditions. He contended in his lawsuit that he could not be terminated for marijuana use at home, on his own time, as that was "legal activity." A trial court dismissed his termination lawsuit. In April 2013, a panel of the Colorado Court of Appeals disagreed with his characterization of "legal activity," and affirmed the dismissal of his lawsuit. 

Under Colorado law, 

"It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours"

Coats' arguments were for relief against DISH under this state law, claiming that by terminating him for his admitted use of marijuana, DISH discriminated against him or committed an unfair employment practice. 

The appellate court affirmed a trial court decision dismissing his claim against DISH. The trial court concluded that marijuana use was not "lawful activity" because state law did not legalize marijuana per se, but merely "created an affirmative defense from prosecution for such use." In other words, the substance and its use remained illegal under Colorado law, but the law also created a defense to prevent prosecution for that violation. 

The Court of Appeals noted that the activity involved, use of marijuana, was against federal law. There has been some trend towards the federal government not enforcing those laws. The Department of Justice essentially outlined the marijuana laws that it would enforce, and thereby made somewhat clear which laws it would not enforce in August 2013. 

The Court of Appeals noted that the statute (above) under which Coats sought protection did not define "lawful," therefore there was need for interpretation of what "lawful" means in order to determine whether his activity was or was not lawful. While the trial court had centered on whether the medical marijuana use license rendered Coats' activity "lawful" or merely defensible, the appellate court centered on the admitted fact that the activity was without question illegal, not "lawful," under federal law. 

The Court of Appeals held that the plain meaning of "lawful" is "permitted by law," according to the legal dictionary. The Court concluded that the federal law applied to people in Colorado. The Court concluded that in order for activity to be "lawful," it must be in compliance with both state and federal law. Of course, this was in April 2013, months before the Department of Justice essentially announced an intention to ignore some categories of federal drug use prohibition in August 2013. 

The Coats case then progressed to the Colorado Supreme Court. It ruled this week, just over two years later, that Coats' activity was not "lawful." Again centering on the federal law question, and knowing of the Department of Justice's decision almost two years ago (August 2013) not to enforce federal law. It may appear to some to be incongruous for a State court to essentially enforce a federal law, enforcement of which it appears the U.S.  Department of Justice has declined. 

The Colorado Supreme Court, according to the Denver Post, concluded that there are issues presented that may be appropriate for legislative action. The legislature there could certainly enact its own definition of the word "lawful" to have a focused or specific meaning compared to that in the legal dictionary. The legislature could likewise refine the application of Colorado's discrimination law specifically in terms of the use of marijuana. 

Since Mr. Coats began the litigation of this termination, the legal landscape has changed in Colorado and other states. At least four jurisdictions have ventured beyond the confines of "medical marijuana" (if in fact such a thing exists) and have made "recreational" marijuana use legal, or at least not subject to prosecution, under state law. Colorado is one. According to Time, five more states are poised to make marijuana law changes in 2016. 

It appears for now, that the federal government's decision to not enforce federal law will not change the fact that certain activity nonetheless remains illegal under federal law. Some state courts, as the Colorado Supreme Court just has, appear to find relevance in the existence of federal legislation regardless of federal enforcement. 

In April, in Marijuana Back in the News, I noted that the news reports a growing acceptance of marijuana. That post predicted that there will be more issues with marijuana use in the coming years. Some believe that if Congress acts and ends the federal prohibition on marijuana use, that will bring an end to the debate surrounding marijuana use. That may be expecting the "lawful" debate to resolve too many issues or questions.

I would suggest that federal legalization may solve some questions, such as Mr. Coats'. However, there may remain other questions even if the substance were legalized by the U.S. Congress. Can an employer preclude workplace impairment? It seems likely that the answer to that will remain yes. 

Can an employer prevent an employee from operating equipment while under the influence of alcohol, or prescription medication today, despite both being perfectly legal under both state and federal law? The answer seems to be yes. And therein lies one of the difficult questions with marijuana. How can the impairment, not presence, of this substance be measured? There are existing tests that measure impairment from alcohol, and even high schoolers are well familiar with statutory presumptions regarding the blood alcohol percentages. 

A story just today on WorkCompCentral addressed an impaired driving accident in New Mexico. It reminds of the impaired employee concern, and the liabilities that may be faced by an employer. This story is about injury to the impaired employee, but there are similarly strong arguments for protecting the unimpaired coworkers, and the public.

Can impairment from marijuana be accurately measured? Some say that it can be. In Is Drug Testing Blaming the Victim I noted some comments surrounding a race car accident. There was a problem during a race and one of the drivers exited his vehicle to have a few words with another driver. Unfortunately, it was dark and the other driver did not see him walking on the darkened track that night. The driver was struck and killed. A conclusion was reached in that case that the driver walking on the track "had enough marijuana in his system to influence his actions." That quote suggests that the technology exists to measure marijuana impairment. 

There are potentials for this to become important in the workplace. If Congress removes the federal prohibition on marijuana, then laws such as Colorado's protecting the "lawful" activity in off-work hours could raise marijuana use and impairment questions that have not yet been discussed. The Court was not faced with safety or impairment questions in Coats. Likewise, if state legislatures, such as Colorado's, redefine "lawful," or if stricter definitions already exist in other states, then the impairment and safety issues may present there.

The Colorado decision this week is not necessarily monumental. The Denver Post quoted a University of Denver law professor, Sam Kamin. He said "it's easy to make too much of this decision. It really comes down to interpreting this one word ("lawful") in this one statute." That was the focus in Coats, and that is really the only issue determined by Coats. The issues of impairment, appropriate testing, and workplace safety remain for the future. 

The Southern Association of Workers' Compensation Administrators will be discussing medical marijuana at its 67th Annual Convention this July. Medical marijuana will be on the agenda for discussion at the annual workers' compensation educational conference (WCEC) in Orlando in August. It is a subject which raises questions and which will continue to garner attention and discussion. Safety experts, doctors, lawyers, risk managers, adjusters and more all have interesting questions about the evolution of marijuana in society, thus in the workplace, and ultimately therefore in workers' compensation. 

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