Was the marijuana user
denied justice
The person I am writing this
article about is Brandon Coates, a man whose doctor has prescribed marijuana to
ease the spasms he suffers from a back injury he got in a car accident when he
was younger. He is a quadriplegic. As such, he was smoking legal medical
marijuana as authorized by the State of Colorado.
He was employed by a firm called, Data Networks a TV satellite provider.
He had good work reviews. His explanation for using medical marijuana was
described by him in an interview.
“If I don’t smoke marijuana, I get debilitating
muscle spasms. I’m a C4, C5 quadriplegic, so the messages between my
lower body and my brain don’t get sent through.
So, when my body sends a message to my brain, it gets sent back and
makes my muscles spasm intensely. The muscles flex as hard as they
can. It just doesn’t stop after that. It goes on and on and on if I
didn’t smoke marijuana. I would be suffering from spasms 24 hours a day,
seven days a week, and I wouldn’t be able to work because I wouldn’t be able to
sit down a desk and remain still. It also makes me sick and nauseous and hot.” unquote
One day he was advises that he (and all other
employees of the firm) were to take a drug test. He told a clerk in Human
Resources that he would fail the test because he is talking medical marijuana.
I should point out that he also said that he only takes it only when he is at
home and nowhere else.
The test was taken by a swab in his mouth and he proved positive for marijuana.
He tried to explain that as per State
law, he was permitted to take medical marijuana if prescribed by his
doctor—which it was. Despite that, he was fired. I should point out that there
was no evidence that his smoking marijuana in his home had an effect on his
ability to do his duties at his employment.
When he was later interviewed, he said, “I never used it at work. I was never
intoxicated at work. I did it in the evening on my own time. I’d
smoke some marijuana. I’d be intoxicated for maybe 20, 30 minutes. It was
gone after that.
I should point out that some growers of medical marijuana have removed
the intoxicating element from the marijuana.
He also said in the interview, “I’d wake up the next day. I’d go to work perfectly
sober. I was never intoxicated at work. I was always getting 100 percent
QAs, good job reviews. I have never had bad ones. Never a write-up;
nothing like that. unquote
Why then would a company fire an employee when they had no complaint
about his work? That was a question
that the courts would have to answer. He
sued the company on the basis of improper dismissal.
Coats
filed his action in the first court claiming that his termination violated the Lawful Activities Statute, section
24-34-402.5, which provides an employment discrimination provision of the
Colorado Civil Rights Act. The statute prohibits an employer from discharging
an employee for “engaging in any lawful activity off the premises of the
employer during nonworking hours.”
The
primary question before the courts (original trial court and court of appeal)
was whether federally prohibited but state-licensed medical marijuana use is
“lawful activity” under section 24-34-402.5, C.R.S. 2012, Colorado’s Lawful Activities Statute. If it is,
employers in Colorado would be effectively prohibited from discharging an
employee for off-the-job use of medical marijuana, regardless that such use was
in violation of federal law.
The
trial judge decided that Coats medical marijuana use was not “lawful activity”
under Colorado law but rather the law created an affirmative defense from
prosecution for such use. The court therefore dismissed the complaint for
failure to state a legitimate claim.
At
the time of Coats termination, all marijuana use in Colorado and all the other
states were prohibited by federal law since there is a federal statute that
prohibits the use of marijuana for any purpose whatsoever.
It is obvious that the federal statue should not have
included the use of medical marijuana as being prohibitive. Currently, No state law could
completely legalize marijuana for medical purposes because the drug remains
illegal under federal law, even for medical users.
There were previous cases before the courts where the
courts ruled that state law authorizing possession and
cultivation of marijuana does not circumscribe federal law prohibiting use and
possession.
Coates`
lawyer acknowledged that medical marijuana use is illegal under federal law,
but he argued that his client`s use was nonetheless lawful activity for
purposes of section 24-34-402.5 because the statutory term “lawful activity”
refers to the state of Colorado state and not federal law.
When
interpreting a statute, one has to ascertain and give effect to the intent of
the legislature based on the plain and ordinary meaning of the statutory
language.
The
three judges in the Appeal Court hearing this case would have to examine the
legislative history to discern the policy objective of the statute and to
ensure that their interpretation is consistent with the legislature’s intent.
The Colorado legislation re legalized marijuana (Section 24-34-402.5(1),
C.R.S. 2012) provides in a pertinent part: “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.” unquote
The
judges recognized that the Statute does not define the word “lawful.” thus they
would have to look to its ordinary meaning. When a statute does not define its
terms but the words used are terms of common usage, we may refer to dictionary
definitions to determine the plain and ordinary meanings of those words. Black’s Law Dictionary (highly respected
law dictionary) defines “lawful” as “authorized by the law.” But in this case,
what law? There are two laws involved in this case—State and Federal. I think
the best way to deal with that question is to bring to your attention two other
laws that conflict with one another.
For
some time now, some States in the US have forbidden same-sex marriages. However
the Supreme Court of the United States recently ruled that same-sex marriages
are legal in all of the States in the US.
That being the case, the States that have been prohibiting same-sex
marriages now have to conform to the Supreme Court ruling.
The State law in Colorado and the Federal law with
respect to legalized medical marijuana conflict with each other and as of the
time of this writing, the issue has not yet been dealt with in the Supreme
Court. That being the case, the federal law as it currently stands has
precedence over the state law. This doesn’t mean that someone in Colorado can
be charged with using medical marijuana if prescribed by a doctor but if that
person uses it in a State that doesn’t permit the use of medical marijuana,
then that person can be charged under the federal law with illegal possession
of marijuana.
The Colorado statutes only refer to the authorities in
that State not punishing a user of medical marijuana in a criminal court. It
doesn’t say anything about employers not being prohibited from firing someone
who uses medical marijuana.
The appeal court was quite right when it denied Coates’
appeal. I will explain why.
The two members of the court agreed that any activity that violates federal law but complies
with state law cannot be “lawful” under the ordinary meaning of that term. For
this reason, applying the plain and ordinary meaning, the term “lawful
activity” in section 24-34-402.5, means that the activity in this case, (Coates’ medical marijuana use) must comply with both state and federal law.
Based
on the premise that although the Colorado legislature intended that section
24-34-402.5 was created to protect employees, the court must interpret “lawful
activity” to include activity that is prohibited by federal law, but not state
law. Since Coates was smoking marijuana (albeit medical marijuana) his doing so
was against a federal law that prohibits the use of marijuana under any
circumstances.
This
conflict between the two laws places users of state authorized medical
marijuana with a doctor’s prescription, in a quagmire that sucks these
unfortunate users into a bottomless pit.
Judge
Webb, the dissenting judge had a different take on this issue. He said in part; “In my view, “lawful
activity” under section 24-34-402.5, C.R.S. 2012, Colorado’s off-duty conduct
statute, should be measured by state law. I further conclude that use of
marijuana in a manner permitted by the Medical Marijuana Amendment is lawful.”
I
disagree with his reasoning. Suppose the United States Supreme Court ruled that
capital punishment was forbidden anywhere in the United States and that later
that became the law of the United States. And suppose one of the States that
had capital punishment in its State’s legislation, could that State still
execute criminals? Not likely. That is because federal law takes precedence
over State law.
No
one who is using medical marijuana in Colorado is being prosecuted by the
federal government. That is because the federal government recognizes the fact
that Colorado has passed a law that permits doctor-approved use of medical
marijuana for those who need it.
But
as I said earlier, the legislation in Colorado does not forbid an employer from
firing an employee who is using medical marijuana.
I
think what is necessary is for this matter to go to the Supreme Court for a
ruling. Alternatively, the federal government can bring in an amendment to the
existing legislation that will permit marijuana users who have a
doctor-approved document or card that permits the user to use medical marijuana
in any form.
In my opinion, no
legislation should state that an employer can’t fire an employee who
legitimately uses medical marijuana especially if that person’s use would interfere
with the safety of others while at work or interfere with his or her work or
cause the employer to lose its insurance or be subjected to an increase in the
insurance premium.
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