pot

By Erin L. Kilgore

In a much-anticipated decision, the Colorado Supreme Court issued a ruling on Monday upholding an employer’s decision to discharge an employee for his off-duty medical marijuana use.

In Coats v. Dish Network, LLC, a quadriplegic employee filed a wrongful termination suit against his former employer, claiming Dish Network violated Colorado’s “lawful activities statute” by terminating his employment after he tested positive for tetrahydrocannabinol (a component of medical marijuana) during a random drug test.  The plaintiff was a registered medical marijuana patient and used medical marijuana at home during non-working hours.  Nevertheless, Dish Network fired the plaintiff for violating the company’s zero tolerance drug policy.

The crux of the case was whether the plaintiff’s termination violated Colorado’s “lawful activities statute.”  As the Colorado Supreme Court explained, that statute generally makes it an “unfair and discriminatory labor practice” to fire an employee based on his “lawful” activities while off duty and outside of work.  Because marijuana use is legal in Colorado, the plaintiff argued that his marijuana use was “lawful” for purposes of the lawful activities statute.  However, marijuana remains an illegal drug listed in Schedule 1 of the federal Controlled Substances Act; thus, marijuana use is illegal under federal law.

The employer argued, and the trial court and court of appeals found, that the plaintiff did not engage in a “lawful activity” within the meaning of Colorado’s lawful activities statute because marijuana use remains illegal under federal law.  The Colorado Supreme Court agreed.   Significantly, the Colorado Supreme Court held that the term “lawful” in the Colorado statute referred only to activities that are lawful under both state and federal law.  Consequently, employees who engage in activities that are permitted by state law but are unlawful under federal law – such as medical marijuana – are not protected by the Colorado lawful activities statute.

As more states move toward some legalization of some marijuana use, the Coats v. Dish Network, LLC case is a significant victory for employers.  Employers should review and update their current drug policies to ensure their policies properly articulate company policy.  For some employers, it may be prudent to acknowledge that some marijuana use may be legal in some states under some circumstances, but to reiterate that any marijuana use is prohibited by federal law and company policy.

A copy of the Colorado Supreme Court’s opinion can be found here.