In a nationally awaited decision, the Colorado Supreme Court upheld an employer’s termination of an employee who tested positive for marijuana due to his off-duty, off-premises marijuana use. Issued on June 15, 2015, the Court’s narrow decision in Coats v. Dish Network, LLC turned on the fact that marijuana use remains illegal under federal law. Construing the term “lawful” to encompass activities that are permitted by both state and federal law, the Court ruled that Coats’s off-duty marijuana use was not a protected activity within the meaning of Colorado’s lawful activities statute because marijuana use remains unlawful under the federal Controlled Substances Act. The Court refrained, however, from addressing the issue of whether the state’s Medical Marijuana Amendment confers a state Constitutional right to such use.
Although binding only on Colorado, this decision provides employers nationwide guidance in enforcing drug-free workplace policies as more and more states legalize some form of marijuana use.
Coats v. Dish Network: Employee Not Impaired By Marijuana At Work
Dish Network, LLC terminated Brandon Coats, a quadriplegic, for violating its zero tolerance drug policy after he tested positive for marijuana in a random workplace drug screen. Coats claimed he only used marijuana after work at home to treat painful muscle spasms caused by his quadriplegia. He stated that he did not use marijuana on Dish’s premises and was never under the drug’s influence at work.
After his termination, Coats sued Dish claiming his termination violated Colorado’s lawful activities statute, which broadly prohibits discharging employees for engaging in “any lawful activity off the premises of the employer during nonworking hours.” Colo. Rev. Stat. § 24-34-402.5(1). Coats argued that because his use of marijuana was legal under state law, he engaged in a lawful off-duty activity for which he could not be discharged. He further argued that the phrase “lawful activity” in Colorado’s statute must be defined in reference to state, not federal law.
Dish countered by focusing on the fact that marijuana remains illegal under federal law, and therefore, its use could not be a “lawful activity” under the Colorado statute, making Coats’s termination legal. The trial court agreed with Dish and dismissed the lawsuit finding that marijuana use is not lawful under state law. A divided Colorado Court of Appeals upheld the trial court’s decision on separate grounds (i.e., that in order for an activity to be “lawful” it cannot contravene state or federal law), which the Colorado Supreme Court has now affirmed.
“Lawful” Means Permitted By Both State and Federal Law
The Colorado lawful activities statute does not define the term “lawful.” Coats argued it should be read as limited to activities that are lawful under state law, which could include legalized marijuana use. The Court disagreed. It looked to the plain language of the statute to conclude that the term “lawful” means permitted by law, or not contrary to, or forbidden by law. The Court refused to impose a state law limitation to the term, ruling that because marijuana use is unlawful under federal law, it is not a “lawful” activity under the Colorado statute.
A successful appeal of the Court’s interpretation of the lawful activities statute to the U.S. Supreme Court is unlikely as the Colorado Supreme Court based its decision on a straightforward common sense construction of a state statute, which is deemed to be within the state’s highest court’s jurisdiction to decide.
Coats’s Impact on Marijuana in the Workplace
The Coats decision is significant to Colorado employers because it confirms that employers are entitled to enforce drug-free workplace policies without fear of violating the state lawful activities statute. Although this case dealt with marijuana use for medical purposes, the Court’s reasoning should apply to recreational marijuana use as well.
Notably, the Court did not decide whether off-duty marijuana use is protected under Colorado’s Medical Marijuana Amendment, which arguably only creates an exemption from criminal prosecution. Any such narrow ruling would almost certainly have spawned additional litigation over the different wording in Colorado’s more recent Recreational Marijuana Amendment, and whether that amendment made off-duty marijuana use “lawful.”
While the Coats decision resolves an important open issue under Colorado law, Colorado employers should continue to exercise caution when dealing with employee marijuana use outside the workplace. Drug testing policies should provide employees with clear notice of consequences for off-duty marijuana use. Further, employers must enforce zero tolerance policies consistently in order to avoid discrimination claims brought under statutes such as the Americans with Disabilities Act and the Colorado Anti-Discrimination Act. When dealing with an employee who uses marijuana off-duty and off-premises, employers should carefully evaluate the facts of each situation and consider the risks of violating other employment laws before making adverse employment decisions.
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