“Can an employer punish someone for doing something that is constitutionally protected?”
That’s the question raised by a pair of articles in Colorado today that lay out the precarious work situation many medical marijuana patients find themselves in.
While the constitutional amendment that established medical marijuana in Colorado says that nothing “shall require any employer to accommodate the medical use of marijuana in any work place,” the state also has a “Lawful Off-Duty Activities Statute” that protects employees from being penalized for something they do outside of work that is legal. (Much of the problem arises from the fact that marijuana stays in people’s systems longer than other drugs, so even if patients aren’t using marijuana during work hours, they could still test positive.) Legal experts have disagreed as to which measure takes precedent.
Against this legal gray area, many medical marijuana patients—teachers, sports coaches, government employees, and nonprofit workers among them—have been faced with the very real prospect of losing their jobs, simply for taking a legitimate medicine that is legal under their own state law.
To add to the confusion, court decisions in other states, including California, have found that employers can fire workers who fail mandatory drug tests. If that same logic were applied in Colorado, any number of the estimated 30,000 medical marijuana patients in the state would have a real cause for concern.
“[The law has] been deciphered to mean that employers can fire a medical-marijuana patient for just about anything,” Brian Vicente, the executive director of Sensible Colorado, told the Denver Post. “Basically, it's a form of legalized discrimination against sick people who choose to use medical marijuana.”