CO Supreme Court: Worker’s Discharge for Off-duty Pot Use Was Legal

In a nationally anticipated decision, the Colorado Supreme Court recently upheld an employer’s termination of an employee for a positive drug test because of his off-duty, off-premises marijuana use. The court’s narrow decision in the case turned on the fact that marijuana use remains illegal under federal law. Construing the term “lawful” to encompass activities that are permitted by both state and federal law, the court ruled that the employee’s off-duty marijuana use wasn’t a protected activity within the meaning of Colorado’s lawful activities statute because marijuana use remains unlawful under the federal Controlled Substances Act. The court refrained from addressing whether Colorado’s Medical Marijuana Amendment confers a state constitutional right to medical marijuana use. Although the decision is binding only in Colorado, it provides employers nationwide with guidance on enforcing drug-free workplace policies as more and more states legalize some form of marijuana use. Employee not impaired by marijuana at work DISH Network terminated Brandon Coats, a quadriplegic, for violating its zero-tolerance drug policy after he tested positive for marijuana in a random workplace drug screen. Coats claimed he used marijuana only at home after work to treat painful muscle spasms caused by his quadriplegia. He stated that he didn’t use marijuana on DISH’s premises and was never under the influence at work. After his termination, Coats sued DISH, claiming his termination violated Colorado’s lawful activities statute, which broadly prohibits discharging employees for engaging in “any lawful activity off the premises of the employer during nonworking hours.” He argued that because his use of marijuana is legal under state law, he engaged in a lawful off-duty activity for which he couldn’t be discharged. He further argued that the phrase “lawful activity” in Colorado’s statute must be defined in reference to state, not federal, law. DISH countered by focusing on the fact that marijuana remains illegal under federal law, and its use therefore cannot be a lawful activity under the Colorado statute, making Coats’ termination legal. The trial court agreed with DISH and dismissed the lawsuit, finding that marijuana use isn’t lawful under state law. A divided Colorado Court of Appeals upheld the trial court’s decision on separate grounds (i.e., to be “lawful,” an activity cannot contravene state or federal law), which the Colorado Supreme Court has now affirmed. ‘Lawful’ = permitted by both state and federal law The Colorado lawful activities statute doesn’t define the term “lawful.” Coats argued that it should be read as being limited to activities that are lawful under state law, which could include legalized marijuana use. The Supreme Court disagreed. The court looked to the plain language of the statute to conclude that the term “lawful” means permitted by law, or not contrary to or forbidden by law. The court refused to impose a state law limitation on the term, ruling that because marijuana use is unlawful under federal law, it isn’t a “lawful” activity under the Colorado statute. A successful appeal of the court’s interpretation of the lawful activities statute to the U.S. Supreme Court is unlikely. The Colorado Supreme Court based its decision on a straightforward commonsense construction of a state statute, which is deemed to be within its jurisdiction to decide. Ruling’s impact on marijuana in the workplace The Coats decision is significant for Colorado employers because it confirms that you are entitled to enforce drug-free workplace policies without fear of violating the state lawful activities statute. Although this case dealt with marijuana use for medical purposes, the court’s reasoning should apply to recreational marijuana use as well. Notably, the court didn’t decide whether off-duty marijuana use is protected under Colorado’s Medical Marijuana Amendment, which arguably only creates an exemption from criminal prosecution. Such a narrow ruling almost certainly would have spawned additional litigation over the different wording in Colorado’s more recent Recreational Marijuana Amendment and whether that amendment makes off-duty marijuana use “lawful.” Coats v. DISH Network, LLC. Bottom line Although the Coats decision resolves an important issue under Colorado law, Colorado employers should continue to exercise caution when dealing with employees’ marijuana use outside the workplace. Your drug-testing policies should provide employees with clear notice of the consequences for off-duty marijuana use. Further, you must enforce zero-tolerance policies consistently to avoid discrimination claims under statutes such as the Americans with Disabilities Act (ADA) and the Colorado Anti-Discrimination Act. When dealing with an employee who uses marijuana off-duty and off-premises, carefully evaluate the facts of each situation and consider the risks of violating other employment laws before making adverse employment decisions.

By Emily Hobbs-Wright

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