Legal Termination for Legal Use of Marijuana: A Legal Trend?

October 8, 2015

By: Michelle R. Magruder

Inside Counsel

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On June 15, 2015, the Colorado Supreme Court issued its opinion in the case of Coats v. Dish Network, 350 P.3d 849 (Colo. 2015). The Colorado Supreme Court’s opinion affirmed the Colorado Court of Appeals decision of April 25, 2013, which ruled that an employer can terminate an employee who tests positive for marijuana, even if the employee has a Colorado-issued medical marijuana certificate.

The Plaintiff in this case, Brandon Coats, is a quadriplegic who was employed by Dish Network, LLC. Mr. Coats has a Colorado medical marijuana certificate. Dish Network has a written drug and alcohol policy which includes random drug testing. Mr. Coats was fired by Dish Network after he tested positive for marijuana during a random drug test.

Mr. Coats filed suit against Dish Network claiming his termination was in violation of a Colorado law known as the “lawful activities statute.” The lawful activities statute generally prohibits an employer from terminating an employee for engaging in a “lawful activity” off the premises of the employer, and during non-working hours. The trial court dismissed Mr. Coats’ suit. Mr. Coats appealed to the Colorado Court of Appeals, which affirmed the Order of the trial court. Mr. Coats filed an appeal with the Colorado Supreme Court.

The main issue before the Colorado Supreme Court was whether the Colorado “lawful activities statute” prevented Mr. Coats from being terminated, since his use of medical marijuana was legal under Colorado law. Mr. Coats argued that because his use of medical marijuana was legal under Colorado law, the Colorado lawful activities statute prohibited Dish Network from terminating him for testing positive for marijuana.

The Colorado Supreme Court focused on what constitutes a “lawful activity” under the Colorado lawful activities statute. Mr. Coats argued that the Colorado General Assembly intended the term “lawful” to mean “lawful under Colorado state law,” which recognizes medical marijuana as “lawful.”

Dish Network argued that the definition of “lawful” is much broader and includes both state and federal law. The supremacy clause of the U.S. Constitution provides that if there is any conflict between federal and state law, the federal law prevails. Dish Network argued because marijuana use remains illegal under federal law, Mr. Coats’ conduct was not protected under the lawful activities statute. Thus, Dish Network was not prohibited from terminating Mr. Coats for testing positive for marijuana.

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The Colorado Supreme Court agreed with Dish Network and affirmed the holding of the Colorado Court of Appeals. Specifically, the Supreme Court held that the plain language of the lawful activities statute refers to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity that is permitted by state law, but is unlawful under federal law, are not protected by the Colorado lawful activities statute. Dish Network’s termination of Mr. Coats was not in violation of the lawful activities statute.

Several other courts have held similarly to the Colorado Supreme Court. See Casias v. Walmart Stores Inc., 764 F.Supp. 2d 914 (W.D. Mich. 2011); Johnson v. Columbia Falls Aluminum Company, LLC, 2009 MT 108 N; Ross v. Ragingwire Telecommunications, Inc., 132 Cal. App. 4th 590, 33 Cal. Rptr. 3d 803 (Cal. App. 3d Dist. 2005); Pernice v. City of Chicago, 237 F.3d 783 (7th Cir. 2001). In each of these opinions, the deciding court rejected the plaintiff’s claims that state anti-discrimination laws prohibit private employers from terminating employees for state-authorized medical marijuana usage.  It appears this holding by several courts around the country may be the start of a legal trend for states that have some form of legalized marijuana.

Employers should have a written drug and alcohol policy that provides notice to all applicants and employees that under certain circumstances, an applicant or an existing employee will be tested for drugs and alcohol. That policy should be disseminated to all employees. All employees should be required to sign a copy of the policy, acknowledging their receipt and understanding of the policy. If an employee tests positive for drugs or alcohol, the employee should be disciplined per the company policy. It is essential that an employer consistently enforce its drug and alcohol policy, and treat everyone the same under the policy. By doing so, an employer should avoid any claims of discrimination or unfair treatment.