On Monday, June 15th, the Colorado Supreme Court issued its ruling in Coats v. Dish, LLC, this was a high profile case in Colorado symbolizing the clash between Colorado law permitting medical marijuana use, Federal law’s criminal approach to all marijuana use, and employers’ anti-drug policies banning marijuana use. All three of these issues came together in this case between Dish Network and Mr. Coats, a former employee of the company.

Mr. Coats is a quadriplegic who tested positive for marijuana while he was employed as a customer service representative by Dish Network. He defended his use by saying that it was done after work for medical reasons and that it was legal in the state of Colorado, and he stated that he would continue to use medical marijuana. He was subsequently fired, and Mr. Coats filed a wrongful termination lawsuit against Dish Network, claiming that his medical marijuana use was protected by Colorado’s “lawful activities statute.” C.R.S. 24-34-402.5 full text available here.

The relevant part of this law for this case was a portion of section 1:

“(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours…”

This law is a small exception to the general rule that if you are an at-will employee, then you can be fired by your employer for any or no reason at any time without direct legal consequences. This law protects employees from engaging in lawful activities that they  engage in off the employer’s premises during nonworking hours. Note however that there are some exceptions even to this exception where employers may still fire for lawful, off duty conduct, but those were not at issue in this case.

Some news reports covering this story have imprecisely framed the issue. They claim that the CO Supreme Court was ruling on whether or not employees of businesses can use marijuana “off-duty.” This portrayal suggests that anyone who is employed and uses medical marijuana can no longer use it because of the ruling. This is not quite right.

What the CO Supreme Court was actually deciding was whether or not Colorado’s “lawful activities statute,” discussed above, protects employees who use medical marijuana from being fired for using it off the premises during nonworking hours. Ultimately, the CO Supreme Court determined that the word “lawful” in the law is not limited to Colorado law only. Instead, they held that it meant that it must be lawful under Colorado and Federal law, and that since all marijuana use is criminal under Federal law, then medical marijuana use would not be classified as “lawful” under the statute and would not be covered by the statute.

You may be thinking about the recent actions by the Federal government not to intervene in states where marijuana use is legal and how that related to this decision. The CO Supreme Court addressed this in a footnote:

“The Department of Justice has announced that it will not prosecute cancer patients or those with debilitating conditions who use medical marijuana in accordance with state law. Similarly, in December 2014, Congress passed the Consolidated and Further Continuing Appropriations Act that prohibited the Department of Justice from using funds made available through the Act to prevent Colorado and states with similar medical marijuana laws from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub. Law No. 113-235, § 538, 128 Stat. 2130, 2217 (2015). However, marijuana is still a Schedule I substance, and no medical marijuana exception yet exists in the CSA. As such, medical marijuana use remains prohibited under the CSA.”

Ultimately, this case means that if an employer fires you for using medical marijuana, the “lawful activities” statute does not protect you, so it is up to the employer to decide if medical marijuana use is acceptable. In practice, this may mean that, employed persons cannot use medical marijuana, but legally speaking, it is up to the employer to make that decision. As a Colorado business, this means that it is up to you to decide how you want to address medical marijuana use by employees, and it appears that this decision has not restricted your authority to manage employee drug use any differently than before this case was decided.

If you have questions about employment laws relating to your business, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.