Colorado Supreme Court Affirms Right to Discharge Medical Marijuana User Who Tested Positive in Violation of Zero Tolerance Policy

Today, the Colorado Supreme Court issued its long-awaited opinion in Coats v. Dish Network, No. 13SC394 (June 15, 2015). The court held that Colorado’s lawful off-duty conduct statute does not prohibit employers from discharging employees who choose to use marijuana for medical purposes off-duty and away from their employers’ places of business, even when there is no evidence that such use affected job performance or that an employee was otherwise impaired while at work. The court held that marijuana remains unlawful under federal law, and, as a result, an employee cannot rely on the lawful off-duty conduct statute as a basis for consumption in violation of an employer’s zero-tolerance drug policy. The court’s decision is limited to Colorado’s constitutional amendment permitting the use of medical marijuana and does not address lawful recreational marijuana use, which Colorado voters approved in a referendum in 2012.

Background

DISH Network employed Brandon Coats as a customer service representative until he tested positive for marijuana in violation of DISH Network’s zero-tolerance drug policy. It is undisputed that Coats’ use of marijuana for medical purposes was lawful under Colorado state law, and there is no evidence he was impaired or otherwise under the influence of marijuana while at work, or that he used marijuana at work. Coats sued DISH Network claiming his discharge violated Colorado’s lawful off-duty conduct statute, C.R.S. § 24-34-402.5, which prohibits employers from discharging employees for “engaging in any lawful activity off the premises of the employer during nonworking hours,” subject to certain exceptions.

DISH Network moved to dismiss Coats’ complaint, arguing medical marijuana use was not a “lawful activity” because it was still prohibited under both state and federal laws at that time. The trial court addressed only the state law question and decided that Coats’ medical marijuana use was not a “lawful activity” under Colorado’s lawful off-duty conduct statute because the Medical Marijuana Amendment did not establish a state constitutional right to medical marijuana use but rather created an affirmative defense from prosecution for such use. Coats appealed the trial court’s decision, and the Colorado Court of Appeals affirmed, reasoning that Coats could not rely on the lawful off-duty conduct statute because marijuana remains unlawful under federal law. Based on its holding that marijuana use is unlawful under federal law, the Court of Appeals did not address whether Colorado’s Medical Marijuana Amendment established a state constitutional right to state-licensed medical marijuana use or simply created an affirmative defense from prosecution for such users.

The Colorado Supreme Court’s Decision

The Colorado Supreme Court affirmed the Court of Appeals’ decision that the lawful off-duty conduct statute does not protect employees from termination for marijuana use in violation of an employer’s zero-tolerance drug policy. The court rejected Coats’ argument that the term “lawful activity” under C.R.S. § 24-34-402.5 refers only to state, and not federal law. The court considered the language of the statute, which provides

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.

The court held that for an activity to be “lawful” in Colorado for purposes of the lawful off-duty conduct statute, it must be permitted by—and not contrary to—both state and federal law. As a result, the court rejected Coats’ argument that his discharge was unlawful.

Based on its finding that marijuana use is prohibited under federal law, the court affirmed the Court of Appeals’ decision and did not address the issue of whether Colorado’s Medical Marijuana Amendment renders medical marijuana use “lawful” by conferring a right to such use. 

Practical Impact

The Colorado Supreme Court’s decision reaffirms an employer’s right to discharge an employee who tests positive for marijuana in violation of an express zero-tolerance drug policy, even when such use occurs outside the workplace, the employee has a license to use medical marijuana in Colorado, and there is no evidence the employee was impaired or otherwise under the influence of marijuana while at work. Colorado employers may still implement policies that prohibit the use of drugs that are illegal under federal law, and employees cannot rely on Colorado’s lawful off-duty conduct statute as a basis for arguing their discharge was wrongful.

Although in 2012 Colorado voters approved a constitutional amendment legalizing recreational marijuana use, the court’s decision applies only to medical marijuana. The constitutional amendment legalizing recreational marijuana use expressly states that nothing contained in the amendment is intended to require an employer to permit or accommodate the use of marijuana in the workplace or to affect employers’ ability to implement and maintain policies restricting employees’ marijuana use. This means that there is no reason to believe the court’s decision would have differed if an employee had been discharged for using marijuana purely for recreational, as opposed to medical purposes.