On the last day of the month, the Colorado Supreme Court will hear oral argument on a wrongful termination case pitting legal medical marijuana use against an employer's right to regulate its work environment.  A wheelchair-bound Dish Network employee, disabled since age 16 from a serious car accident, filed suit against his former employer challenging his termination for failing a drug screen; the man used marijuana in the evenings to control his regular painful spasms.

The case highlights how, even as marijuana has gained legal ground and wide-spread acceptance across the country, it continues to pose a tricky policy obstacle to a drug-fee work place.  Contemporary ads for employment in Colorado and Washington, where recreational marijuana use is legalized, routinely warn of companies' zero-tolerance policy.

Basically, it's: "do not bother to apply if you use marijuana."  This Dish Network case tests the legality of that policy.

Employers, like this Blogger, see the advantage of a drug-free workplace: more focus on the job [who wants a stoned workforce]; a safer work environment; and, in some cases, compliance with state and federal laws in order to obtain government contracts.  On the other hand, Brandon Coats, the plaintiff in the Colorado case, argues persuasively that a person can drink to obliteration every night and, so long as they show-up for work the following day, they will not be fired on the basis of a positive alcohol screen.

This case, and the other marijuana employment cases, also highlight the persistent conflict of law issue that begs resolution: despite 23 states legalizing medical marijuana use, and two states legalizing its recreational use, marijuana remains a Schedule I controlled substance under the federal Controlled Substance Act.

Therein lies the cover that the Colorado Court of Appeals used in affirming the trial court's summary dismissal of Mr Coats' case.  The Court of Appeals held:

Thus, forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job activity is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that.

Moreover, a review of Colorado statutes shows that if the legislature had wanted to insulate employees from discharge for off-the-job activities illegal only under federal law, it knew how to do so.

Long ago, Congress placed marijuana in the same category as cocaine, heroin and opiates: the dreaded Schedule I [i.e. no known medicinal value, with significant potential to harm].  In more recent times, SCOTUS held in 2005 that state marijuana laws [California] did not circumvent the federal prohibition.

Over here at the Law Blogger, we are not going to hold our breath until Congress removes marijuana from Schedule I, as that day will probably not come within the lifetime of anyone now living.

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