Colo.: No Employment Protection for Marijuana Use

By SHRM Online staff May 20, 2013
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A worker’s use of state-licensed medical marijuana off-duty and off of the employer’s premises during nonwork hours can be a cause for dismissal, a Colorado appeals court held April 25, 2013.

For an activity to be lawful and thus protected by the Colorado Lawful Off-Duty Activities Statute (24-34-402.5, C.R.S. 2012), the court declared in its 2-1 decision, the action “must be permitted by, and not contrary to, both state and federal law.” Because federal law prohibits marijuana use, the court concluded, it cannot be lawful in Colorado, so it cannot enjoy employment protection.

Brandon Coats was a telephone operator for Englewood, Colo.-based Dish Network LLC. He was paralyzed in a car accident when he was a teenager and, since 2009, had used medical marijuana for debilitating muscle spasms that otherwise prevented him from working. After failing a random drug test, he was fired by Dish Network in 2010.

Coats sued, arguing that he was not impaired on the job and his drug use was legal under state law. A trial court dismissed his case, finding that the state law created only exemptions from prosecution, not rights. Coats appealed both the underlying lawsuit and the trial court’s award of attorney fees to Dish Network.

The appeals court majority ruled for the employer on the broader basis that nothing that is illegal under federal law can be legal under the Lawful Off-Duty Activities Statute, which was originally passed to protect cigarette smokers from being fired. However, the court reversed the attorney fees award.

Colorado voters legalized the possession of up to an ounce of marijuana for recreational use by adults in November 2012. That law permits employers to enforce drug policies, and a state task force recommended that employers be permitted to fire workers for off-duty marijuana use.

Coats v. Dish Network LLC, Colo. Ct. App., Div. A, Nos. 12CA0595, 12CA1704 (April 25, 2013).

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