Will Colorado marijuana ruling affect Nevada?
Dish Network has a strict zero-tolerance drug policy. Brandon Coats is a quadriplegic who uses legal medical marijuana. The company fired the Colorado man in 2010 when it found he was using medical marijuana in his off hours.
Sounded callous, but was it legal?
Short answer: Yes, in Colorado. Maybe in Nevada.
“Mr. Coats could not have had a more sympathetic set of facts,” said Steve Suflas, an attorney with the national law firm of Ballard Spahr, who is based in Colorado. “This was a guy with a very, very sad state of affairs and an employer with a strict anti-drug policy.”
On Monday, the Colorado Supreme Court ruled it was OK for the satellite company to fire the telephone customer service representative, though what he was doing on his own time was perfectly legal under Colorado law. However, it is a violation of federal law.
Coats argued what he did was legal under Colorado law. The court said it must be legal under state and federal laws.
Nevada law has the same language as Colorado, prohibiting an employer from terminating an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.”
“With this decision, Colorado joins at least two other courts, the 6th Circuit and the California Supreme Court, that similarly upheld an employer’s right to discipline an employee for medical marijuana use,” Suflas said.
The culture in Colorado and California favors liberal pot laws. But apparently that culture doesn’t extend to the Colorado judiciary.
Tick Segerblom, the Las Vegas attorney and state senator who has carried the banner for legalizing medical marijuana, is hoping the Nevada Supreme Court doesn’t follow Colorado’s example. “I hope our court says state law has priority over federal law,” he said Tuesday.
Nevada does not have a parallel employment case working its way through the courts, according to Edwin Keller Jr., a Las Vegas attorney with the firm Kamer Zucker Abbott, which represents employers in labor and employment law matters. “Based on a search of the active cases covered by Westlaw in the Nevada courts and the federal district court for Nevada, there is no current case working its way through the system challenging discipline for medical marijuana use under Nevada’s lawful products statute, NRS 613.333, or Nevada’s medical marijuana workplace accommodation statute, NRS 453A.800(3).”
In March, more than three months before the Legislature ended, Keller had urged lawmakers in the 2015 Legislature to clarify ambiguities and conflicts in the 2013 medical marijuana bill. Unfortunately, they didn’t.
And in the rush to set up dispensaries, the 2013 Legislature paid little attention to the employment issues of legalized medical marijuana.
On one hand, Nevada law currently says employers are not required to accommodate the medical use of marijuana. On the other, the law says employers must make reasonable accommodations for medical marijuana users.
No wonder Keller politely described the 2013 bill as “hastily constructed.”
Poorly constructed is more like it. And the 2015 lawmakers didn’t fix the conflicts in the cleanup bill they passed rushing to get the dispensaries open so the rich can get richer. Shame on lawmakers for not addressing multiple major issues in employment law, leaving patients with the choice of their pain or their job.
The 20 or so states that have blithely legalized medical marijuana and those like Colorado, which legalized recreational pot, are finding there are ramifications.
As Keller said, the medical marijuana patients may be taking a big risk and may be afraid to disclose that they have cards to use medical marijuana. The patients don’t know the standards.
What if you’re in chronic pain and disclosure means you can be fired for using marijuana? Is it worth it?
Just because medical marijuana is legal in Nevada doesn’t mean you won’t lose your job.
The time and money spent legalizing pot on a state-by-state basis by activists might have been better used working to change federal pot laws.
Eventually, there will be a case before the Nevada Supreme Court. But who is willing to be the test case, if it means losing your job and your income?
Think about taking that risk.
Jane Ann Morrison’s column appears Thursdays. Email her at jmorrison@reviewjournal.com or leave a message at 702-383-0275. Find her on Twitter: @janeannmorrison
