Colorado High Court Issues First Look Into Marijuana Use by Employees

Authored by , David P. Frenzia

Jun 16, 2015

Colorado’s High Court is the first to demarcate an employer’s right to terminate an employee who tests positive for marijuana in the murky legal environment created by medical marijuana laws and the legalization of marijuana for recreational use. In Brandon Coats v. Dish Network, LLC, Coats was fired after he tested positive for marijuana in a random drug test at work. Coats held a medical marijuana license, which permitted him to use medical marijuana at home to treat muscle pain associated with his quadriplegia.

Coats filed a wrongful termination claim against Dish Network under a Colorado statute that prohibits employers from discharging employees who engage in “lawful activities” off employer premises and during non-working hours. Col. Rev. Stat. § 24-34-402.5(1). However, the statute requires the activity to be “lawful” under state and federal law. Because marijuana is still prohibited under the federal Controlled Substances Act, its use is unlawful according to the Supreme Court of Colorado’s opinion early this week. Thus, an employee is not protected from discharge even though the use of marijuana is permitted by state law.

The suit was dismissed by the trial court and, in a split decision with one judge dissenting, the Colorado Court of Appeals Agreed. The Supreme Court of Colorado solidified these results with its opinion early this week, affirming that as long as marijuana is illegal under federal law, employees will not be protected from discharge if they fail a drug test at work.

Illinois employers should take note of this case, especially because the Illinois medical marijuana program is well underway. Although the Colorado Supreme Court’s decision in Coats is not precedent in Illinois, it is nonetheless instructive. Illinois, too, like many other states, has a so-called “lawful activities” statute that generally prohibits an employer from discharging or discriminating against an employee because of his or her off-duty use of otherwise lawful products. Coats is important because it is the first case that, at a minimum, gives judges (and employers) some guidance on a hazy, but important, workplace issue.

If you have any questions about medical marijuana or any other employment law matter, please do not hesitate to contact Ashley A. Diaz or Dave P. Frenzia

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