Should Employers Be Forced to Hire Cannabis Consumers?

Under Colorado law, employers are
forbidden to fire people for “any lawful activity” in which
they engage on their own time outside the workplace. Yesterday the
Colorado Supreme Court
considered the novel question of whether “any lawful activity”
includes cannabis consumption that is permitted by state law but
still a crime under federal law. Although the case involves medical
use, it has broader implications now that Colorado has legalized
recreational use as well.

The plaintiff is Brandon Coats, a 34-year-old quadriplegic who
was fired from his job with Dish Network in 2010 after he tested
positive for nonpsychoactive traces of marijuana. Coats uses
cannabis to relieve the seizures and muscle spasms he has suffered
since he was injured in a car crash as a teenager. Such cannabis
consumption was allowed by state law when he was fired but
prohibited by federal law, which is still the case. Dish Network
has a “zero tolerance” policy regarding illegal drug use,
regardless of whether it affects job performance. Coats argues that
state legality is all that’s required to make an activity “lawful.”
His former employer disagrees, and so did the courts that have
heard his case so far.

Th Denver Post
reports that the justices were “mostly scratching their heads”
at yesterday’s hearing, and I certainly am no better situated to
decide whether a law driven by a desire to protect tobacco smokers
should be interpreted to protect pot smokers as well. But I will
say this much: The law should never have been passed to begin with.
Although I believe that drug policies such as Dish Network’s are
stupid, I also believe that employers have a right to adopt stupid
drug policies (along with any other conditions of employment that
people voluntarily accept when they take a job). Such arbitrary
rules surely would be
much less common in the absence of prohibition—a drug policy
that, unlike Dish Network’s, is imposed at the point of a gun. But
forcing people to hire cannabis consumers is wrong for the same
reason that cannabis prohibition is wrong: It posits threats of
violence as an appropriate response to activities that violate no
one’s rights.