“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

Jason Beinor was a street sweeper, assigned to sweep the 16th Street Mall with a broom and dustpan. He had a clean employment record, with no written reprimands or warnings. Yet he was fired from his job and disqualified from receiving unemployment benefits.

Beinor suffers from debilitating migraine headaches – a lasting, painful consequence of a prior assault. Like 96,000 other Coloradans, Beinor is a legal medical marijuana patient, and occasionally uses this substance in an off-work capacity to ameliorate his suffering. Unfortunately for Beinor, a random drug test in February 2010 tested positive for marijuana, costing him his job.

Beinor never used or possessed marijuana while on the job, and his private medical use never interfered with his job performance. However, under his employer’s zero-tolerance policy, the residual, non-psychoactive THC in Beinor’s system was considered an illegal drug, and Beinor was immediately terminated. Because Beinor believed he had been fired through no fault of his own – his marijuana had been doctor-recommended and lawfully-obtained – he filed for unemployment compensation benefits. He was denied, the Colorado Court of Appeals upheld the decision. Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Recently, the Colorado Supreme Court denied to review the case.

Under Colorado statutes “[t]he presence in an individual’s system, during working hours, of not medically prescribed controlled substances” disqualifies that employee from benefits. Beinor had THC metabolites, the non-psychoactive reside of marijuana – in his system during working hours. But he thought he was safe because it had been medically recommended to him. Unfortunately, the written documentation physicians provide their patients recommending medical use of marijuana is specifically not a “prescription”. This is where federal law comes into play.

Doctors across the country must be registered with the Drug Enforcement Administration (DEA) in order to lawfully prescribe medication. However, because of marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act, registered doctors cannot prescribe marijuana, but only recommend it. Indeed, their recommendations must clearly state, “[t]his assessment is not a prescription for the use of marijuana.” Thus, Beinor’s medical marijuana was considered “not medically prescribed.”

In the grand scheme of things, legal technicalities such as whether a doctor’s written recommendation is considered a “prescription” wouldn’t matter if Beinor and other patients had a constitutional right to use marijuana. However, the majority of the Colorado Court of Appeals in Beinor did not interpret Amendment 20, Colorado’s original medical marijuana law passed in 2000, to grant that right. Instead, it determined Amendment 20 only created limited exceptions to state criminal laws for patients, primary caregivers, and physicians concerning the medical use of marijuana.

The Court pointed specifically to a clause in Amendment 20 that reads: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” As Judge Gabriel, who dissented from the majority, astutely pointed out, Beinor never used marijuana in his work place, and that provision does not logically include “the presence of marijuana in one’s blood after the lawful use of medical marijuana at home.” Judge Gabriel further observes that, under such an interpretation of the law, “many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk.”

The majority’s decision has significantly deteriorated the rights and protections that medical marijuana patients believed they had. On a positive note, there is another case before the Colorado Supreme Court, regarding a patient whose probation was revoked due to his lawful, medical use of marijuana. If the Supreme Court grants review to that case, it may be able to begin reversing a dangerous growing trend of discrimination against medical marijuana patients, perpetuated by the Court of Appeals.

Another way to solidify the rights of patients would be the passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which Coloradans will vote on in November. Unlike the medical marijuana amendment, whose ambiguous language left it vulnerable to manipulation, Amendment 64 clearly declares adult use of marijuana to be legal, thereby circumventing any restrictive interpretation such as was seen in the Beinor.