About Us  |  About Cheetah®  |  Contact Us

Colorado S.Ct. to tackle tension between state-sanctioned marijuana use and employer drug policies

By Pamela Wolf, J.D. and Lisa Milam-Perez, J.D.

The Colorado Supreme Court has decided to take up an issue that could have a substantial impact on employers in the state that rely on drug policies to discipline employees whose drug tests come back positive for marijuana, despite state law permitting use of the popular controlled substance for medical, and more recently, for recreational purposes — a type of use not directly implicated in the case. On Monday, January 28, the state’s highest court issued an order granting certiorari in Coats v Dish Network, LLC (Dkt No 13SC394).

Disabled employee fired for off-duty use. In April 2013, a divided state appeals court held that Colorado’s Lawful Activities Statute, which prohibits employers in the state from firing employees for engaging in lawful off-duty conduct, does not bar the discharge of an employee who uses medical marijuana off the clock (Coats v Dish Network, LLC, April 25, 2013, Davidson, J). Although Colorado’s Medical Marijuana Amendment permits use of the Schedule 1 Controlled Substance for medicinal purposes (and the state’s voters legalized its general use last November), the substance remains prohibited under federal law, the majority noted, and thus was not a “lawful activity” under the statute at issue. Thus, the appeals court upheld a trial court’s dismissal of the wrongful discharge claims of a quadriplegic customer service rep who was fired after testing positive for the drug, in violation of company policy.

In this case, the employee was licensed to use medical marijuana, and he did so while off-duty to ease his disability. He never used the drug at work and was never impaired while on duty. However, he was discharged after testing positive for the substance, and he filed suit under the Off-Duty Activities Statute, a provision of the Colorado Civil Rights Act. Contending that state-licensed medical marijuana use was not lawful activity under the statute, the employer filed a motion to dismiss, which the trial court granted. The appeals court affirmed.

Question presented. The Colorado State Supreme Court will address two questions, the second of which was not addressed by the courts below:

  • Whether the Lawful Activities Statute, section 24-34-402.5, protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance.
  • Whether the Medical Marijuana Amendment [to the state constitution] makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered with the state.

The case will be closely watched by employers and attorneys both inside and outside of the state.