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Colorado Court Rules Employees Can be Fired for Legal Marijuana Use

Posted by John Powter

Jun 21, 2015 8:28:00 AM

Quick Facts
  • The ruling in Coats v. Dish Network was issued on June 15, 2015.
  • The case addressed whether legal marijuana use is a “lawful activity” under state law.
  • The court held that employees who engage in activities that are illegal under federal law are not protected by Colorado’s “lawful activities” statute. marijuana

We recently wrote about how to handle marijuana in the workplace.  The Colorado Supreme Court has ruled that employees may be fired for using medical marijuana outside of the workplace, even though such use is legal under state law. The court’s highly anticipated ruling in Coats v. Dish Network was issued on June 15, 2015.

In this case, the court addressed whether the use of medical marijuana is a lawful activity under Colorado’s “lawful activities” statute. This law protects Colorado employees from being discharged based on their “lawful” activities outside of work.

The court wrote that “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 statute."

Coats v. Dish Network

The case began when the employer, Dish Network, fired the plaintiff; Brandon Coats, for violating the company’s drug policy. Coats is a quadriplegic with a Colorado medical marijuana license. He tested positive for marijuana on a random drug test and was fired.

Coats sued the company for wrongful termination under the “lawful activities” statute. He argued that because the state constitution allows him to use medical marijuana, such use should be considered “lawful activity” for purposes of the statute.

The lower courts dismissed the case, finding that medical marijuana use is not “lawful” for purposes of the lawful activities statute. The Colorado Supreme Court agreed, explaining that the commonly accepted meaning of the term “lawful” includes lawful under both state and federal law. The court also noted that federal law trumps state law.

The court did not address a separate question as to whether Amendment 20 of the Colorado Constitution actually makes medical marijuana use a “lawful” activity under state law. A trial court below held that Amendment 20 merely provides a defense to state prosecution for medical marijuana use and does not impart any legal right to engage in the activity.

State and Federal Drug Laws

Amendment 20 of the Colorado Constitution, which became effective in 2000, allows for the possession and use of medical marijuana within the state. The amendment specifies that employers are not required to accommodate the medical use of marijuana in the workplace, but it does not address marijuana use outside of work.

Medical marijuana is also allowed in 22 other states, as well as in Washington D.C. and Guam. The laws in those jurisdictions vary, but very few contain any specific language about employers’ rights to terminate employees for off-duty medical marijuana use.

A more recent Colorado constitutional amendment—Amendment 64—allows individuals to use marijuana recreationally in the state as of 2012. Amendment 64 also specifies that employers are not required to accommodate recreational marijuana use in the workplace and provides no explicit limits on an employer’s ability to restrict an employee’s use outside of the workplace.

A state government task force has indicated Amendment 64 allows employers to maintain zero-tolerance and drug testing policies, but additional guidance may be necessary. While this amendment was not at issue in this case, such state laws can still raise questions for employers in similar circumstances.

Three other states—Washington, Alaska and Oregon—and Washington D.C. have also passed laws allowing recreational marijuana use.

Under federal law, all marijuana use is illegal. The federal Controlled Substances Act classifies marijuana as a Schedule I substance, which includes drugs considered to have high potential for abuse and no currently accepted medical treatment applications.

Impact on Employers

The court’s decision appears to strengthen an employer’s right to establish and enforce zero-tolerance and drug testing policies even if an employee’s marijuana use is permitted under state law. Although the ruling is only binding in Colorado, its roots in federal law make it persuasive for employers in all other states and particularly relevant for employers in states with similar medical marijuana laws.

By highlighting the fact that all marijuana use remains a federal crime, the case confirms that employers generally have no duty to accommodate any employee’s marijuana use, regardless of time or place. It may also provide some direction as to employer's’ rights when employees travel to and use marijuana in states where recreational use is legal. However, the case also underscores the need for employers to establish and communicate clear, written expectations for employees.

Most importantly, employers in other states where medical marijuana is legal should be aware of whether their particular state laws address employment issues. Many of the laws expressly permit employers to discipline employees if they use or possess marijuana in the workplace. Only a few, however, such as California, Montana, Oregon and Washington, explicitly allow employers to enforce zero-tolerance policies regardless of whether the employee’s use was off duty and legal under state law.

Some of the state medical marijuana laws expressly prohibit employers from discriminating against employees for being registered medical marijuana users, and a few specifically  protect employees from being disciplined for testing positive on a drug test.

New York law goes a step further by equating medical marijuana cardholder status with having a disability for purposes of the state’s disability discrimination statute. Nevada’s law requires employers to reasonably accommodate off-duty medical marijuana use, but it also provides exceptions for use that poses a threat or prohibits an employee from fulfilling all job responsibilities.

Therefore, employers in such states should proceed with caution and seek further guidance before implementing or enforcing drug testing policies.

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Topics: Compliance

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