Colorado Medical Marijuana Case is Not as Far-Reaching as Expected
On June 15, 2015, the Colorado Supreme Court issued its highly anticipated decision in Coats v.Dish Network. In a unanimous decision, the court in Coats upheld the termination of anemployee who failed a random drug test after using marijuana for medicinal purposes duringhis off-duty hours. The employee argued that because his use of medical marijuana was lawfulunder Colorado law, he was protected from discharge under Colorado’s “lawful activities”statute, which generally prohibits employers from terminating employees for engaging in lawfuloff-duty conduct.
(Photo credit: Associated Press)
The Court's Holding
Rejecting the employee’s argument, the court held that as used in Colorado’s lawful activitiesstatute, the term “lawful” refers to those activities that are lawful under both state and federallaw. Because marijuana use for any purpose remains unlawful under federal law, the court heldthat employees who use marijuana, even for medicinal purposes, are not protected by thestatute.
The Employment Perspective
From an employment perspective, the principal concern arising from an employee’s off-dutyuse of marijuana stems from the impairing effects of the drug. One frequently cited studyinvolving aircraft pilots suggests that low to moderate marijuana use may significantly impair anindividual’s ability to perform complex tasks involving machinery for as long as 24 hours afteringestion.
Many employee representatives and marijuana advocates dispute these findings, and maintainthat marijuana-related impairment subsides more rapidly. Reaching any firm conclusionsconcerning the typical duration of impairment is, in fact, difficult due to variations inconsumption habits – there is no medically accepted “dosage” of marijuana – and becausemarijuana’s status as a Schedule I Controlled Substance under federal law limits the ability toconduct research into such matters. Nevertheless, virtually all interested parties acknowledgethat the impairing effects of marijuana last for some time after ingestion. There is also someempirical evidence that chronic marijuana use can have not only temporary but lastingcognitive and physiological effects on the user.
Given these facts, it is clear that an employee’s off-duty use of marijuana could have adverseand occasionally even catastrophic workplace consequences. An employer who allows anemployee to continue working after testing positive for marijuana may be placing theemployee, the employee’s coworkers, and innocent third parties at risk, and may be subjectingitself to potential civil liability to those who may be injured as a result of the employee’sinability to work safely.
Amicus Brief: Workplace Safety
These issues were addressed in several briefs submitted to the Colorado Supreme Court in theCoats case. Our firm, for example, submitted an amicus (or “friend-of-the court”) brief onbehalf of the Colorado Mining Association, a 1000-member industry organization whosemembers are vitally concerned with workplace safety. In that brief, available here, we argued, among otherthings, that in order to assure the safety of their workplaces (and often to comply with federalsafety regulations), employers in the mining and other safety-sensitive industries should beentitled to terminate employees for off-duty marijuana use even if that use is permissible understate law.
The Court Focused on Statutory Construction
Interestingly, the Colorado Supreme Court ultimately found it unnecessary to address most ofthese arguments. Apart from noting that, as a matter of federal law, marijuana is still deemedto have “no medical accepted use, a high risk of abuse, and a lack of accepted safety for useunder medical supervision,” the court did not discuss the complex policy questions presentedby the case. The court instead opted to decide the case based solely on the language of theColorado lawful activities statute.
As a matter of statutory construction, it is difficult to quarrel with the court’s interpretation ofthe statute. And by affirming the right of employers to implement and enforce “no tolerance”and other workplace drug policies that fit their particular needs, as well as their right toterminate employees who violate those policies, the Coats decision brings much-needed clarityto this aspect of Colorado law.
Narrowly Crafted Decision
Before the case was decided, many observers predicted that the impact of the Coats decisionwould extend well beyond Colorado, providing guidance to courts addressing the workplaceimplications of off-duty marijuana use in other states that have legalized the medical or evenrecreational use of the drug. However, the court’s opinion was crafted so narrowly that itsprecedential impact is likely to be more limited than anticipated. In particular, the analysis inCoats may offer relatively little guidance to employers and employees in states like Arizona,Delaware, and Minnesota, all of whom have enacted medical marijuana laws that contain theirown explicit employment protections for individuals who use marijuana in compliance withthose laws.