Colorado Supreme Court Upholds Firing Over Off-Duty Medical Marijuana Use by Steven W. Suflas, Leslie A. Eaton, Sarah B. Wallace, and Erin K. Clarke

An employer did not act unlawfully when it fired a quadriplegic worker who used medical marijuana while off duty, the Colorado Supreme Court ruled today in a 6-0 decision. Affirming the April 2013 decision of the Colorado Court of Appeals, the Court rejected the plaintiff's contention that the firing violated a state law that generally protects employees’ “lawful” outside-of-work activities, finding that employees who engage in activity that is lawful under state law but unlawful under federal law are not protected by the statute.

In Coats v. Dish Network, LLC, the petitioner filed suit against his former employer, alleging that he was wrongfully terminated in violation of Colorado’s Lawful Activities Statute. The statute prohibits an employer from terminating an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.” The petitioner, a quadriplegic, was employed as a telephone customer service representative. He used marijuana within the limits of his state-issued medical marijuana license, at home and after work. Dish Network fired him in 2010 for violating its drug policy after he tested positive for THC (a component of medical marijuana) during a random drug test.

On appeal to the Colorado Supreme Court, the petitioner argued that the term “lawful activity” in the statute meant conduct that is “lawful” under Colorado law. The Court rejected this interpretation and ruled that the activity protected by the statute must comply with both state and federal laws. Because the federal Controlled Substances Act prohibits marijuana use in all forms, the Court found that the petitioner’s use was unlawful and unprotected under the state statute.

The decision affirms that Colorado employers can maintain and enforce substance abuse policies that impose discipline for testing positive due to the influence of marijuana while at work, even if an employee has a state-issued license to use medical marijuana. With this decision, Colorado joins at least two other courts, the Sixth Circuit and the California Supreme Court, that similarly upheld an employer’s right to discipline an employee for medical marijuana use.

If you have any questions on the Coats case or substance abuse policies, please contact Steven W. Suflas at 303.299.7326 or suflas@ballardspahr.com, Leslie A. Eaton at 303.299.7302 or eaton@ballardspahr.com, Sarah B. Wallace at 303.299.7334 or wallaces@ballardspahr.com, or Erin K. Clarke at 215.864.8318 or clarkee@ballardspahr.com, or the Ballard Spahr attorney with whom you work.

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