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Potholes Loom On Road To Legal Marijuana

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Would you smoke marijuana if it were legal?

Backers of two rival ballot initiatives to decriminalize the cultivation, purchase and use of marijuana are betting that a significant percentage of Michigan adults — at least 12% — would, generating upwards of $200 million a year in tax revenue once the state has established the ground rules for a legal market.

But what if you knew your employer could fire you for having chemical traces of marijuana in your bloodstream — even if you used it only on your own time, and in your own home?

RelatedMarijuana legalization could be on 2016 ballot

It's a question those hoping to legalize recreational marijuana in Michigan will have to confront in the wake of the Colorado Supreme Court's unanimous ruling that employers in their state may dismiss employees who smoke pot off the job, even if a physician has prescribed its use.

In a case employment lawyers throughout the country have been following closely, Colorado's highest court concluded this week that Dish Network was within its rights when it fired Brandon Coats, a customer service worker, in 2010 after he tested positive for marijuana in a random drug test.

Colorado became the first state to authorize the personal use of marijuana in 2012. Three other states have since followed suit, and voters in another dozen, including Michigan, are likely to take up similar decriminalization initiatives in or before 2016.

Michigan is also one of 23 states that allow medical marijuana, approved by voters in 2008, although legislators here have so far failed to agree on a way to facilitate its cultivation and distribution. Although federal law continues to prohibit all marijuana use, the Justice Department has largely abandoned enforcement efforts in states that have decriminalized it.

Related: Workers can be fired for using pot off-duty, court rules

No refuge

Coats, who uses medical marijuana to alleviate the chronic pain he has experienced since an automobile accident left him paralyzed, challenged his dismissal in court, citing a Colorado law that specifically prohibits employers from firing workers for "any lawful activity" they pursue away from home.

But Colorado justices said the federal government's continuing prohibition of marijuana meant that its use remains unlawful, even though their state has decriminalized it.

"Employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the (Colorado employment) statute," Justice Alison Eid wrote in an opinion for the 6-0 majority.

Michigan employees beware

Deborah Gordon, a labor law specialist in Bloomfield Hills, says she believes Michigan medical marijuana users in Coats' circumstances are protected by a law that requires employers to make reasonable efforts to accommodate the medical needs of qualified employees.

If a worker needs medical marijuana to manage a medical condition and using the drug doesn't interfere with his work, Gordon argues, his employer should be enjoined from enforcing a work rule that would otherwise justify the dismissal of any employee who tests positive for marijuana.

Related: How a sticky note helps Holly woman fight marijuana rap

But even if medical users were protected from dismissal, she conceded, it's not clear that legalizing marijuana on the state level would protect workers in Michigan from reprisals by disapproving employers.

It's even harder to imagine that a group as deferential to employers as the current state Legislature would intercede on workers' behalf. If you want a preview of how lawmakers might react to a ballot initiative to legalize recreational use, consider how legislative foot-dragging has constrained the orderly development of the medical marijuana market. Or the adamant opposition of Michigan Attorney General Bill Schuette; although voters made medical marijuana legal in 2008, Schuette has become a bitter foe, declaring dispensaries illegal in 2013 and prompting a wave of police raids.

You don't need a crystal ball to understand that champions of legalized pot have achieved critical momentum. State governments are too desperate for revenue, and recreational users too rich a potential source of it, for prohibitionists to hold the line much longer.

Absent the discovery of some previously undisclosed health hazard, marijuana is virtually certain to become more widely available, and its users more rarely the targets of criminal prosecution, in the decade ahead.

But prohibitionists still have plenty of ways to register their disapproval of the way the issue is playing out. And until conflicts between state and federal law are resolved once and for all, they'll likely make marijuana users pay a price for their newly won privileges.

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