Colorado Supreme Court Affirms Employer's Right to Fire Employee for State-licensed Medical Marijuana Use at Home | Practical Law

Colorado Supreme Court Affirms Employer's Right to Fire Employee for State-licensed Medical Marijuana Use at Home | Practical Law

In Coats v. Dish Network, LLC, the Colorado Supreme Court held that although an employee's medical marijuana use outside the workplace was licensed under Colorado state law, it was unlawful under the federal Controlled Substances Act (21 U.S.C. § 844(a)). As a result, his termination from employment for violation of the employer's drug policy was not protected under Colorado's "lawful activities" statute (Colo. Rev. Stat. Ann. § 24-34-402.5).

Colorado Supreme Court Affirms Employer's Right to Fire Employee for State-licensed Medical Marijuana Use at Home

by Practical Law Labor & Employment
Published on 17 Jun 2015 • USA (National/Federal)
In Coats v. Dish Network, LLC, the Colorado Supreme Court held that although an employee's medical marijuana use outside the workplace was licensed under Colorado state law, it was unlawful under the federal Controlled Substances Act (21 U.S.C. § 844(a)). As a result, his termination from employment for violation of the employer's drug policy was not protected under Colorado's "lawful activities" statute (Colo. Rev. Stat. Ann. § 24-34-402.5).
On June 15, 2015, in Coats v. Dish Network, LLC, the Colorado Supreme Court held that although an employee's medical marijuana use outside the workplace was licensed under Colorado state law, it was unlawful under the federal Controlled Substances Act (21 U.S.C. § 844(a)). As a result, his termination from employment for violation of the employer's drug policy was not protected under Colorado's "lawful activities" statute (Colo. Rev. Stat. Ann. § 24-34-402.5) (2015 CO 44).

Background

Since 2007, Brandon Coats had worked for respondent Dish Network, LLC (Dish) as a customer service representative. In 2009, he obtained a state license to consume medical marijuana to treat painful muscle spasms caused by quadriplegia. The following events occurred:
  • In May 2010, during a random drug test, Coats tested positive for tetrahydrocannabinol (THC).
  • Coats told Dish he was a registered medical marijuana patient and would continue using medical marijuana.
  • On June 7, 2010, Dish terminated Coats's employment for violation of its zero-tolerance drug policy.
  • Coats filed a wrongful termination claim against Dish under Colorado Revised Statutes, Section 24-34-402.5, which prohibits employers from discharging an employee based on lawful off-premises activity during nonworking hours.
  • Coats argued that Dish violated the Colorado statute by terminating his employment based on his out-of-work medical marijuana use, which he argued was "lawful" under the Medical Marijuana Amendment and implementing legislation.
  • Dish moved to dismiss the claim, arguing that Coats’s medical marijuana use was not "lawful" for purposes of the statute under either federal or state law.
  • The trial court:
    • dismissed Coats’s claim, rejecting his argument that the Medical Marijuana Amendment made his use a "lawful activity" under Section 24-34-402.5;
    • instead found that the Amendment provided registered patients an affirmative defense to state criminal prosecution but did not make their medical marijuana use a "lawful activity" under Section 24-34-402.5;
    • concluded that the statute did not protect Coats; and
    • dismissed the claim without examining the federal law issue.
  • Coats appealed, arguing that Dish wrongfully terminated him under Section 24-34-402.5 because his use of medical marijuana was "lawful" under state law. Dish responded that it did not violate Section 24-34-402.5 because medical marijuana use remains prohibited under federal law. In a split decision, the court of appeals affirmed the dismissal based on the prohibition of marijuana use under the federal Controlled Substances Act (21 U.S.C. § 844(a) (2012)) (Coats v. Dish Network, L.L.C., 303 P.3d 147 (Colo. April 25, 2013)). For more information, see Legal Update, Colorado Employee Legally Fired For Off-duty Marijuana Use.
  • The Colorado Supreme Court granted certiorari (Coats v. Dish Network, LLC, No. 13SC394, (Colo. Jan. 27, 2014)).

Outcome

The Colorado Supreme Court held that since Coats's medical marijuana use was unlawful under the federal Controlled Substances Act (21 U.S.C. § 844(a)) it did not fall under the Section 24-34-402.5 protection for "lawful" off-duty activities.
The Supreme Court:
  • Found that Section 24-34-402.5 only protects "lawful" activities but does not define "lawful."
  • Agreed with the court of appeals that the commonly accepted meaning of the term "lawful" is "that which is 'permitted by law' or, conversely, that which is "not contrary to, or forbidden by law."
  • Disagreed with Coats' contention that the General Assembly intended the term "lawful" under Section 24-34-402.5 to mean "lawful under Colorado state law," which recognizes medical marijuana use as "lawful." The Supreme Court does not find the term "lawful" to be so restrictive, noting that nothing in the statute's language limits the term "lawful" to state law. Instead, the term is used in its general, unrestricted sense, indicating that a "lawful" activity is one which complies with all applicable state and federal law.
  • Noted that under the federal Controlled Substances Act there is no exception for marijuana use for medicinal purposes or in accordance with state law (21 U.S.C. § 844(a); Gonzales v. Raich, 545 U.S. 1 (2005)).
  • Found that Coats's use of medical marijuana was unlawful under federal law and therefore was not protected by Section 24-34-402.5.

Practical Implications

This decision puts Colorado employees who use medical marijuana in a difficult position as they will either have to consider other treatments or find a position with an employer that does not enforce a zero-tolerance drug policy. However, the decision provides clarification for employers as it gives them the freedom to devise employment policies concerning marijuana use that fit their particular workplace, including zero-tolerance drug policies.