Medical Marijuana and the Workplace

Colorado Court of Appeals rules on conflict between employer drug policy and medical marijuana use

Coats v. Dish Network, LLC 2013 COA 62

On April 25, 2013 the Colorado Court of Appeals announced its decision that state-licensed medical marijuana use is not a “lawful activity” under section 24-34-402.5, C.R.S. because marijuana use is still federally prohibited.

Colorado’s Lawful Activities Statute (section 24-34-402.5, C.R.S.) protects employees by prohibiting employers from discharging an employee for “engaging in any lawful activity off the premises of the employer during non working hours,” subject to certain exceptions.

When the Medical Marijuana Amendment was enacted, and now with Colorado’s legalization of recreational marijuana use, we all had questions about how this would impact the workplace. 

In Coats v. Dish Network, LLC, plaintiff (Coats), a quadriplegic and licensed medical marijuana user, was fired after he tested positive for marijuana which violated Dish Network’s drug policy.  Coats alleged that he used marijuana within the limits of his license, never used marijuana at work or Dish Network’s premises, and was never under the influence of marijuana at work.  Coats argued that the Lawful Activities Statute protected him from termination because his use of marijuana was legal under the state constitution.

On appeal, Dish Network successfully argued that because any use of marijuana is illegal under federal law, it is not a “lawful activity” protected by section 24-34-402.5, C.R.S.  The Court of Appeals reasoned:

“Based on the premise that the legislature intended that section 24-34-402.5 protect employees, plaintiff contends that we must read “lawful activity” to include activity that is prohibited by federal law, but not state law.  However, while we agree that the general purpose of section 24-34-402.5 is to keep an employer’s proverbial noes out of an employee’s off-site off-hours business, we can find no legislative intent to extent employment protection to those engaged in activities that violate federal law.”

Though the opinion did not discuss Amendment 64 [legalization of recreational marijuana use] it is clear that, for now, neither the Medical Marijuana Amendment or Amendment 64 will protect employees from termination if they violate their employer’s drug policy.

Stay tuned – we are certain to see this decision appealed to the Supreme Court of Colorado.