Innocent Positives: Patients Fired for Medical Marijuana Treatments

Here's the link to an article I wrote for Kush Magazine, Innocent Positives: Patients Fired for Medical Marijuana Treatments. Check out page 103.

Medical Marijuana and Colorado Unemployment Benefits

Employees who are fired for exercising their Colorado Constitutional rights to treat their debilitating medical conditions with medicinal marijuana should not be penalized by the State that authorizes medical use under the Colorado Medical Marijuana Registry Program.

Yet, the State of Colorado Industrial Claims Appeals Office is depriving some patients of unemployment benefits after they are wrongfully fired and seek unemployment insurance, which is designed to help workers who are fired through no fault of their own.

Here's a news clip that may be of interest from an interview with 9News this morning. What do you think?

Employers and Medical Marijuana

Employers should follow the lead of the federal Veteran's Administration.

This month the VA announced that it will draw a "clear distinction between the use of illegal drugs and legal medical marijuana."

The VA will not penalize medical marijuana patients who are treating validly under their states' laws.

Similarly, employers should revise their workplace drug policies to make a clear distinction between the use of legal medical marijuana and illegal drugs with no legitimate medical purposes. They should distinguish between treatments and abuse.

Some managers are being forced by corporate headquarters to fire workers who treat at home with medical marijuana, when they know that these workers have been stellar performers with absolutely no problems at work.

Employers are losing valuable employees because of their outdated "zero tolerance" drug policies that fail to account for legitimate medical treatments.

These unenlightened policies are based on false information from outdated stereotypes of medical marijuana that ignored the scientific proof that marijuana is safe and beneficial and treats a multitude of illnesses and pain.

Recent studies confirm that marijuana is a safer alternative to some of the pharmaceuticals that produce horrific side effects, often far worse than the original disease. Yet some employers are stuck in the old mentality that falsely lumped medical marijuana in with narcotics as an unsafe treatment, or worse yet, just a drug to be abused.

It is unethical to deprive patients of very beneficial medical treatments based on the fear of abuse. Any drug can be abused. Would it be logical to deprive people of prescription medications since they can be abused? Would it be right to deprive them of their jobs?

Employers can step up now and follow the lead of the VA in recognizing the difference between state-sanctioned medical marijuana treatments and illicit drugs. State-sanctioned medical marijuana should be treated as other medical treatments, and should not be used to deprive good workers of their livelihoods.

VA Recognizes Legal Medical Marijuana

The federal Veteran's Administration will not penalize Veterans for using medical marijuana by depriving them of other necessary medicines, according to a July letter issued by the US Department of Veteran Affairs Under Secretary for Health Robert Petzel, M.D.

Testing positive for marijuana would not preclude a Veteran from receiving other medications for pain management in a Department of Veterans Affairs (VA) facility, if a Veteran obtains and uses medical marijuana in a manner consistent with state law.

The authorized use of medical marijuana should not be defined as "illegal drug use," according to the VA Under Secretary.

"Standard pain management agreements should draw a clear distinction between the use of illegal drugs, and legal medical marijuana," says Under Secretary Pelzel.

The VA further instructs that the individual health care provider retains the discretion to prescribe, or not prescribe, opioids in conjunction with medical marijuana. The health care provider has the authority to determine the medications on clinical grounds.

The Veteran would need to inform his provider of the use of medical marijuana, and of any other non-VA prescribed medications he or she is taking to ensure that all medications, including opioids, are prescribed in a safe manner, according to Under Secretary Dr. Pelzel.

The provider will take the use of medical marijuana into account in all prescribing decisions, just as the provider would for any other medication, according to the VA.

"This is a case-by-case decision, based upon the provider's judgment, and the needs of the patient."

The VA is right about one thing - medical marijuana patients should not be treated as criminals, nor should they be deprived of their medically necessary treatments.

This guidance is important because it reaffirms that at least one administration within the federal government recognizes that medical marijuana, when used validly under state law, is a medical decision best left to the physician and the patient and should not be treated as a criminal matter. It is a health care decision.

Colorado Constitutional Rights to Medical Marijuana

The Colorado Constitution provides positive rights to citizens, which include affirmative defenses to prosecution under state laws for qualified use of medical marijuana. The rights guaranteed by the Colorado Constitution are much more expansive than just affirmative defenses, as I read the Constitution.


The Colorado Constitution guarantees positive rights to medical marijuana by providing the following rights:

1. Right to medical use of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

2. Right to acquisition of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

3. Right to possession of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

4. Right to production of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

5. Right to transportation of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

6. Right to medical use of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

7. Right to acquisition of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

8. Right to production of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

9. Right to transportation of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

10. Rights to possess, acquire, possess, produce, transport up to 2 ounces of marijuana by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

11. Rights to possess, acquire, possess, produce, transport up to 6 plants by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

12. Right to acquisition of marijuana paraphernalia by caregivers for patients under the age of 18. COLO. CONST. art XVIII, § 14, 6; 6(i)

13. Right to protection of physician rights or privileges for acts authorized by Constitution. COLO. CONST. art XVIII, § 14, 2(c)

14. Right of physicians to advise a patient about risks and benefits of use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

15. Right of physicians to advise a patient that she might benefit from medical use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

16. Rights of physicians to provide medical documentation to patient for acquisition of medical registry card. COLO. CONST. art XVIII, § 14, 2(c); 2(b)(1); 3(1)

17. Rights to protections for property interests of a property owner for property seized by law enforcement. COLO. CONST. art XVIII, § 14, 2(e)

18. Rights to immediate return of patient or caregiver property after seizure upon described conditions. COLO. CONST. art XVIII, § 14, 2(e)

19. Right to assert affirmative defense for qualified patients from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(b)

20. Right to assert affirmative defense for physicians from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(c)

21. Right to confidential registry maintained by state health agency. COLO. CONST. art XVIII, § 14, 3

22. Right to participation in Colorado Medical Marijuana Registry program. COLO. CONST. art XVIII, § 14, 3(c), 8(9)

23. Right to obtain registry ID Card from state health agency on demonstration of qualification. COLO. CONST. art XVIII, § 14, 3(c)

24. Right to timely action by state health agency. COLO. CONST. art XVIII, § 14, 3(d)

25. Right of citizens to automatic participation in Medical Marijuana Registry on expiration of 35 days of application in absence of notification of denial of application. COLO. CONST. art XVIII, § 14, 3(d)

26. Right of primary caregiver to control acquisition of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

27. Right of primary caregiver to control frequency of use of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

28. Right of primary caregiver to control dosage of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

29. Right of patients to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

30. Right of physicians to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

31. Implied rights to accommodation of medical use of marijuana outside of the workplace. COLO. CONST. art XVIII, § 14, 10(c)

Additional rights affirmatively granted to primary caregivers via affirmative defense:

32. Right of primacy care-giver to engage in medical use of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f)

33. Right of primary care-giver to assist in acquisition of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

34. Right of primary care-giver to assist in possession of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

35. Right of primary caregiver to assist in production of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

36. Right of primary caregiver to assist in transportation of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

37. Right of primary caregiver to assert an affirmative defense to prosecution. COLO. CONST. art XVIII, § 14, 2(b).

This makes Colorado unique among the states passing medical marijuana statutes.

These are Constitutional rights.

Marijuana use remains illegal under federal law at this time.

This is provided for educational and informational use only and does not constitute legal advice in any particular situation. Every circumstance is different. If you have questions about your particular situation, you may wish to consider retaining legal counsel.

Waiting to Exhale: Medical Marijuana and Workers' Rights

Do you think medical marijuana patients should be forced to choose between their medicine and their livelihoods?

Here's a blurb from Alicia McNally's article in Law Week Colorado, covering a presentation I recently gave to the Colorado Bar Association, along with Chuck Passaglia. . .

DENVER — According to Chuck Passaglia of Littleton-based Employment Law Solutions, a positive drug test for marijuana isn’t sufficient evidence of whether an employee is “under the influence” on the job. . . . read the rest of the article:

“Positive Drug Test Doesn’t Prove Jack” For Employees With Medical Marijuana