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Appeal could sway marijuana workplace policies

Attorneys for Brandon Coats, a quadriplegic medical marijuana patient fired from his job at a Dish Network call center, filed their argument appealing to the Colorado Supreme Court.
Attorneys for Brandon Coats, a quadriplegic medical marijuana patient fired from his job at a Dish Network call center, filed their argument appealing to the Colorado Supreme Court.

DENVER - Attorneys for Brandon Coats, a quadriplegic medical marijuana patient fired from his job at a Dish Network call center, filed their argument appealing to the Colorado Supreme Court.

In the appellate brief filed Tuesday, Coats' lawyers argue that his off-duty use of medical marijuana is protected by Colorado's "lawful activities" statute, which is designed to protect employees from being fired for their behavior outside of work, so long as they aren't violating the law or having an negative impact on their job performance.

Several business groups filed an amicus brief in the case as well, arguing for the ability to maintain their existing drug policies, something voters recently approved when they passed Amendment 64, legalizing recreational marijuana.

Oral arguments have been requested in the case, but not yet scheduled.

Coats is asking the state's high court to overturn a decision from the Colorado Court of Appeals, which dismissed his case against Dish Network, ruling that his off-duty use of pot did not qualify as "lawful activity," because marijuana remains illegal under the federal Controlled Substances Act.

READ: Coats v. DISH Opening Brief

READ: Motion for Leave for Amicus

According to his attorneys, Coats failed a saliva test for THC, which was the basis for the company's decision to fire him.

Both sides of the argument point to a lack of good THC testing technology and standards in their arguments.

Coats' lawyers portray his firing as the result of "antiquated" testing that merely results in a positive or negative result for the presence of THC. They argue that this does not prove on-the-job marijuana impairment, merely that he used marijuana at some point.

In addition, many companies rely on urine tests for THC metabolites, which can detect marijuana use weeks prior to the test.

Conversely, employers argue that they need some leeway to conduct drug testing because there aren't good alternatives to gauge on-the-job marijuana impairment.

"With the current state of testing for marijuana," the industry groups argue in their amicus brief. "It is impossible for anyone, much less employers, to determine whether someone is currently under the influence of marijuana or whether marijuana remains in an employee's system from prior off-duty use."

It's worth pointing out that blood tests, such as those used by law enforcement in DUI cases, can detect unmetabolized (also called "active" of "delta-9") THC in the body, though employers are understandably loath to require their workers to give a blood sample in a confrontational setting.

In the Coats case, lawyers point out that he was not targeted for testing because of a belief that he was intoxicated on the job.

"Throughout his three year employment, Coats had satisfactory performance reviews and DISH never accused or suspected him of being impaired or under the influence while at work," his attorneys wrote to the court.

The Colorado statute in question does not define the word "lawful," leaving open the question of whether it should include federal illegal activity. The appellate court decided to go with the dictionary definition of "lawful" in its decision.

Lawyers for Coats want the state's high court to reach the conclusion of appeals court Judge John Webb, who concluded in his dissenting opinion that the lawful activities statute should not extend to activities that legal under state law but federally illegal.

"When the General Assembly has intended to define a term with reference to both state and federal law, it did so specifically," Webb wrote.

Any decision by the state supreme court to reverse the lower court's decision could have sweeping effects on employer drug policies, though such a ruling could be narrowly tailored to accommodate medical marijuana patients and not recreational users of pot.

(KUSA-TV © 2014 Multimedia Holdings Corporation)

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