IT’S THE ONES YOU LEAST EXPECT: COLORADO AND CALIFORNIA LAG BEHIND IN PROTECTING EMPLOYEES’ OFF-DUTY MEDICAL MARIJUANA USE
By: Andrew Eggers, Volume 106 Staff Member
In 2021, both New York and New Jersey joined the growing number of states which offer employment protections for workers engaging in legal, off-duty medical marijuana consumption. Conspicuously, two pioneering states of legal marijuana use—Colorado and California—remain absent from the list of states offering employment protections to employees legally using medical marijuana outside of working hours. Amidst the irony of these two states (of all states) failing to offer this sensible protection for employees, Colorado and California ought to join their peers in crafting state legislation to protect legal, off-duty medical marijuana consumption.
I. MEDICAL MARIJUANA’S ROOTS
Over the past decade, the legalization of marijuana for recreational purposes across the country has garnered most of the headlines, almost overshadowing medical marijuana’s progress towards total ubiquity in the United States. California, via the Compassionate Use Act of 1996, became the first state in the country to legalize medical marijuana. Colorado followed four years later, and even became the first state (alongside Washington) to legalize recreational marijuana in 2012. Medical marijuana’s popularity, in part, can be attributed to its benefits for several medical conditions, including epilepsy, multiple sclerosis, and severe and chronic pain. The proliferation of legal marijuana—medical or otherwise—has impacted, inevitably, the employer-employee relationship. Considerations for employers include legal marijuana’s relationship with the federal Americans with Disabilities Act  and its effects on workers’ compensation and employee drug-testing policies. Employers often have legitimate reasons for banning marijuana consumption or its effects at the workplace, and the laws protecting off-duty medical marijuana use do not strip the employer’s rights to maintain a drug-free workplace or force the employer to accommodate an employee under the influence of marijuana while at the workplace.
II. STATE COURT DECISIONS REVEAL THE NEED FOR LEGISLATIVE ACTION
In the absence of state legislation, state supreme court decisions in Colorado and California have supplied the law concerning an employer’s ability to terminate an employee based on their off-duty consumption of medical marijuana. In Coats v. Dish Network, LLC, the Colorado Supreme Court gave employers the green light to terminate employees based on their consumption of medical marijuana. The plaintiff in that case, Brandon Coats, lawfully used medical marijuana outside of working hours to treat the frequent pain associated with his permanent quadriplegia. Despite Colorado state law prohibiting termination for “lawful” off-duty activities, Coats’s employer terminated him after learning of his medical marijuana use. The court justified the employer’s dismissal by interpreting the Colorado statute’s use of “lawful” to include federal law, which bans the use of marijuana for all purposes. Whatever the merits of the Colorado Supreme Court’s decision, the state legislature has yet to address the irony and inconsistency created in Coats, and Colorado employers remain free to terminate employees for their legal, off-duty consumption of medical marijuana in a state which profits heavily from legal marijuana.
Fellow marijuana powerhouse California also lacks state-level protections for legal medical marijuana consumption by employees. In Ross v. RagingWire Telecommunications, Inc., the California Supreme Court validated the dismissal of an employee who, at his physician’s direction, took advantage of California’s Compassionate Use Act to use medical marijuana outside of working hours to treat chronic pain suffered as a result of injuries sustained during military service. The section of the employment statute under which Ross brought suit prohibited the termination of employees based on a disability, and lacked the more general protections for all legal off-duty activities found in Colorado. Similar to the Colorado Supreme Court in Coats, the California Supreme Court recognized the illegality of marijuana in all forms at the federal level and declined to read the state law broadly enough to protect employees from termination based on their legal use of medical marijuana at the state level.
III. THE COLORADO AND CALIFORNIA STATE LEGISLATURES SHOULD ACT TO PROTECT OFF-DUTY MEDICAL MARIJUANA CONSUMPTION
The courts’ rulings above smack of irony when considered alongside the prevalence and general attitude towards marijuana in both Colorado and California. Currently, California has the largest number of medical marijuana patients in the country. Colorado’s medical marijuana use is less robust, but almost 90,000 registered medical marijuana users existed in early 2021. The comparatively small number of medical marijuana patients in Colorado may, in part, be due to their higher rate of recreational marijuana use. Regardless, both states have a sizeable section of their workforce engaging in an otherwise sanctioned, off-duty medical treatment activity. The foregoing facts indicate the generally friendly attitude towards cannabis found in both states, which makes their snub of statutory employment protections for off-duty medical marijuana consumption all the more puzzling when viewed alongside those of typically more conservative states like Arkansas.
Indeed, it seems overdue for the state legislatures of both states to address the glaring inconsistency between their general attitude towards marijuana and their implicit acceptance of judicial precedent which allows their citizens to lose their livelihood for engaging in an otherwise legal, off-duty activity. Whether the failure to enact state laws protecting employees’ off-duty medical marijuana consumption is merely an unforeseen consequence overlooked by Colorado and California’s pioneering medical marijuana legislation is uncertain, and no other reason for inaction has been proffered for the inconsistency. With plenty of other states providing employee protection for off-duty medical marijuana consumption alongside model statutory language, the continued discrepancy in Colorado and California will continue to grow more flagrant if state legislative action is not taken.
Colorado and California’s omission of state-level protections will continue to deny employees legally using medical marijuana outside of working hours, especially since legalization at the federal level does not appear to be forthcoming. Both state legislatures ought to join their peers in protecting legal, off-duty medical marijuana consumption to put an end to the incongruous lack of state-level protections for employees engaging in a treatment option long condoned in their states.
 See N.Y. Lab. Law § 201-d (making it unlawful to discriminate against or terminate an employee for “an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property”).
 N.J. Stat. Ann. § 24:6I-52.
 Shahabudeen K. Khan, Employers Beware: What Are Employers’ Obligations and Rights Given New Marijuana Legislations?, 6 Belmont L. Rev. 74, 88 (2019) (listing nine states with anti-discrimination employment statutes protecting qualified medical marijuana users).
 See Madeline Marshall, Weed Was the Real Winner of the 2020 Election, Vox (Nov. 13, 2020), https://www.vox.com/2020/11/13/21560332/weed-won-2020-election [https://perma.cc/Y5YX-Y9B7] (“[O]ne in three Americans now lives in a state where access to marijuana has been legalized.”).
 Tori B. Powell, Mississippi Governor Signs Bill Legalizing Medical Marijuana, CBS News (Feb. 2, 2022), https://www.cbsnews.com/news/mississippi-medical-marijuana-legalized [https://perma.cc/N9JP-MWNG] (“[Mississippi] has now become the 37th [state] in the nation to enact laws legalizing the use of marijuana for medicinal purposes . . . .”). The recent legalization of medical marijuana in Mississippi comes belatedly after a protracted battle between the state supreme court and the state legislature. See Geoff Pender & Bobby Harrison, Mississippi Supreme Court Overturns Medical Marijuana Initiative 65, Miss. Today (May 14, 2021), https://mississippitoday.org/2021/05/14/mississippi-supreme-court-overturns-medical-marijuana-initiative-65 [https://perma.cc/A9LN-Z5LS] (reporting on the court’s invalidation of the state’s ballot initiative process which allowed voters to pass the medical marijuana initiative and its comment on state legislature’s failure to resolve the known issue upon which the court’s decision rested).
 Isabella Vanderheiden, 25 Years Later: How Prop. 215 Changed the Cannabis Landscape for Humboldt County and California, Times-Standard (Nov. 6, 2021), https://www.times-standard.com/2021/11/06/25-years-later-how-prop-215-changed-the-cannabis-landscape-for-humboldt-county-and-california [https://perma.cc/7S73-9BK7].
 Jessica Smith, A Look Back: The Timeline of the Marijuana Legalization Movement in Colorado, Post Indep. (July 17, 2015), https://www.postindependent.com/entertainment/a-look-back-the-timeline-of-the-marijuana-legalization-movement-in-colorado [https://perma.cc/D5ZX-2FCT].
 Medical Marijuana, Mayo Clinic (Dec. 4, 2021), https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/medical-marijuana/art-20137855 [https://perma.cc/HR7T-KSBZ].
 See Stephen M. Scannell, Comment, Medical Marijuana and the ADA: Following the Path Blazed by State Courts to Extend Protection, 12 St. Louis U. J. Health L. & Pol’y 391, 401 (2019) (explaining that the Americans with Disabilities Act does not afford protections to legal medical marijuana users).
 Stacey L. Worthy & Shruti R. Kulkarni, Dazed and Confused: Making Sense of Employers’ Risks from Mandated Coverage of Non-FDA-Approved Cannabis Products, 45 Seton Hall Legis. J. 379, 397–99 (2021).
 Joshua Weisenfeld, Note, Medical Marijuana Patients: Discrimination & the Search for Employment Protections, 27 Cardozo J. Equal Rts. & Soc. Just. 375, 385–86 (2021).
 See NSC: No Level of Cannabis Use Acceptable for Those Who Work in Safety Sensitive Positions, Nat’l Safety Council (Oct. 21, 2019), https://www.nsc.org/in-the-newsroom/nsc-no-level-of-cannabis-use-acceptable-for-those-who-work-in-safety-sensitive-positions [https://perma.cc/BHX3-4C6V] (arguing that marijuana’s ability to affect an individual’s decision making and motor functions make it essential that employees in safety sensitive jobs not be under its influence).
 E.g., N.J. Stat. Ann. § 24:6I-52(b)(1(a).
 350 P.3d 849, 850 (Colo. 2015).
 Id. at 850–51.
 Id. at 852.
 See Eric Rosenbaum, Colorado Passes $1 Billion in Marijuana State Revenue, CNBC (June 12, 2019), https://www.cnbc.com/2019/06/12/colorado-passes-1-billion-in-marijuana-state-revenue.html [https://perma.cc/YB3W-D9MM] (noting that, at the time of writing, monthly state tax revenue from marijuana sales had never dipped below $20 million).
 Alexandra Hutzler, States with Legal Recreational Marijuana Made $2.7 Billion in Tax Revenue Last Year, Report Finds, Newsweek (May 25, 2021), https://www.newsweek.com/states-legal-recreational-marijuana-made-27-billion-tax-revenue-last-year-report-finds-1594681 [https://perma.cc/3C4N-P9TW] (“California . . . made more than $1 billion in tax revenue in 2020 [from legalized marijuana].”).
 174 P.3d 200, 203 (Cal. 2008).
 Id. at 203–04.
 Coats, 350 P.3d at 850.
 Ross, 174 P.3d at 204–07. But see Barbuto v. Advantage Sales & Mktg., LLC, 78 N.E.3d 37, 45 (Mass. 2017) (reading the Massachusetts medical marijuana law as providing users a protected right or privilege under the state anti-discrimination in employment statute).
 Martha S. Rosenthal & R. Nathan Pipitone, Demographics, Perceptions, and Use of Medical Marijuana Among Patients in Florida, 4 Med. Cannabis & Cannabinoids 13, 14 (2021) (“Florida is second only to California for the number of [medical marijuana] patients . . . .”).
 Medical Marijuana Patient Numbers, Marijuana Pol’y Project, https://www.mpp.org/issues/medical-marijuana/state-by-state-medical-marijuana-laws/medical-marijuana-patient-numbers [https://perma.cc/2R9Z-6GYK] (last updated May 27, 2021).
 See Jack K. Reed, Impacts of Marijuana Legalization in Colorado, Colo. Dep’t Pub. Safety (July 2021), https://cdpsdocs.state.co.us/ors/docs/reports/2021-SB13-283_Rpt.pdf [https://perma.cc/2L7Z-DB8U] (stating that 19% of Colorado adults reported using marijuana within the previous thirty days of the survey). California, unsurprisingly, also sees a high volume of recreational marijuana use. See Recent Trends in Adult Use of Marijuana, L.A. Cnty. Dep’t Pub. Health (July 2018), http://publichealth.lacounty.gov/chie/reports/CannabisBrief_FINAL.pdf [https://perma.cc/N47T-L4ZM] (stating that, in 2015, almost one million adults reported using marijuana in the past year in Los Angeles County alone).
 See supra notes 6–7 and accompanying text.
 See Susan G. Hauser, Cannabis Tourism Is on the Rise, N.Y. Times (July 3, 2019), https://www.nytimes.com/2019/07/03/travel/marijuana-vacation-travel-cannabis-usa.html [https://perma.cc/VYY7-2U4F] (highlighting the popularity of “cannabis tourism” in both Colorado and California). But see Alex Burness, Colorado May See Its Biggest Overhaul of Marijuana Laws Since Recreational Legalization, Denver Post (Mar. 11, 2021), https://www.denverpost.com/2021/03/11/colorado-biggest-overhaul-marijuana-laws-thc-cap [https://perma.cc/R4PW-DALU] (explaining Colorado lawmakers’ interest in tighter regulations on the marijuana industry).
 See Ark. Const. amend. XCVIII, § 3(f)(3)(A)–(B) (stating that an employer may not discriminate against an employee in hiring, termination, or any term or condition of employment based on the employee’s past or present status as a qualifying patient for medical marijuana and permitting the employer to take action if an employee is under the influence of marijuana exclusively “while on the premises of the employer or during the hours of employment”).
 See supra notes 6–7 and accompanying text.
 See supra notes 1–2 and accompanying text.
 See Maeve Sheehey, Psaki: Biden Unmoved on Marijuana Legalization Despite Schumer Legislation, Politico (July 14, 2021), https://www.politico.com/news/2021/07/14/biden-marijuana-legalization-499642 [https://perma.cc/6V8P-GTAQ] (“The president has previously supported marijuana decriminalization, but hasn’t gone so far as to support legalization.”).