What Are You Smoking? Colorado Supreme Court Rules That Employer Can Ban Medicinal Marijuana Use, Even if Legal Under State Law

Coats v. Dish Network, Case No. 13SC394 (June 15, 2015). The case is the first of its kind to decide whether lawful marijuana use under state law can still be prohibited by an employer.

The employee in question, Brandon Coats (“Coats”), sued Dish after his termination in 2012. He alleged that he was unlawfully discharged after Dish discovered, through a required drug test, that he used state-licensed medical marijuana on non-working time. Coats, a quadriplegic, obtained a medicinal marijuana license in 2009 to treat muscle spasms. He used the marijuana only in his home and not during work time. However, Dish had a no-tolerance  drug policy and terminated him despite the fact that he used the marijuana medicinally and with a proper license.

Colorado, like many states, has a “lawful activities” statute which prohibits discrimination against employees who engage in conduct that is otherwise recognized as lawful under Colorado law. 24-34.402.5 (CRS 2014). Coats argued that because his use of medicinal marijuana is recognized as legal in Colorado, Dish could not terminate him for failing the company’s no-drug policy because such termination violated the “lawful activities” statute.

Colorado’s highest court disagreed with Coats and held, in a 6-0 ruling, that that state’s “lawful activities” statute does not shield workers who engage in an activity that is allowed by state law but prohibited by federal law, affirming an intermediate appeals court decision that also went against Coats. In so holding, the Court observed that the term “lawful” is not defined by the statute in any way. The Court wrote: “Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable ‘law,’ including state and federal law.”  The Court concluded that because medicinal marijuana use is forbidden under federal law, it is not “lawful” under the state’s “lawful activities” statute. Therefore, Dish did not violate the law when it terminated Coats for violating  its company drug policy.

The Dish case is one of first impression in interpreting whether state “lawful activity” statutes cover activities that are lawful just in the state, but not federally. While there are not many areas where state and federal law drastically diverge like this, medicinal marijuana is certainly a major one. And with more states permitting the use of marijuana, the Colorado Supreme Court’s ruling is a victory for employers who wish to maintain a drug-free work place.