Colo. High Court: Employer Can Fire Employee for Off-Duty Medical Marijuana Use

By Joanne Deschenaux Jun 15, 2015
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The Colorado Supreme Court ruled June 15, 2015, that 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, upholding the decisions of two lower courts (Coats v. Dish Network, No. 13SC394).

The bottom line is that “if employers want to test for marijuana, they will be free to act on positive use results,” according to Steve Bell, a labor and employment partner at the international law firm Dorsey & Whitney in its Denver office. He said that the decision gives power to businesses and that employees should take note.

Employer Has Zero-Tolerance Policy

Brandon Coats was partially paralyzed in a car crash as a teenager, using a wheelchair, and has been a medical marijuana patient since 2010 when he discovered that using pot helped calm violent seizures and muscle spasms. Coats was a telephone call-center operator with Dish Network for three years before he failed a cheek-swab random drug test in 2010, and was fired. Dish Network has a zero-tolerance policy against using illegal drugs.

Coats brought his lawsuit against Dish under Colorado’s lawful off-duty activities law, which specifically says employers cannot fire people for doing something legal on their own time. Originally the law was enacted to protect cigarette smokers and many states have similar laws. Both the trial judge and Colorado Court of Appeals ruled against Coats “legal use” argument holding that as long as marijuana is illegal under federal law the state law does not apply.

On Sept. 30, 2014, the Colorado Supreme Court heard oral arguments in the case. The Supreme Court’s decision was made unanimously by six justices. The seventh, Justice Monica Marquez, recused herself because her father was involved in one of the lower court rulings.

“There is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law," the court wrote.

Coats and his lawyers said the decision at least clarified the matter for workers.

"Although I'm very disappointed today, I hope that my case has brought the issue of use of medical marijuana and employment to light," Coats said in a statement.

Dish Network and other business groups applauded the ruling.

"As a national employer, Dish remains committed to a drug-free workplace and compliance with federal law," company spokesman John Hall said in a statement.

Many States Have Medical Marijuana Laws

Colorado voters first approved a constitutional amendment authorizing the use of medical marijuana in 2000. Marijuana for recreational use was approved by voters in 2012, and started being sold in retail shops in Colorado on April 1, 2014.

Twenty-three states and the District of Columbia now have medical marijuana laws. Washington and Colorado laws specifically state that employers do not have to accommodate employees’ marijuana use. But other states such as Arizona, Nevada, New York, Minnesota, and Delaware grant various levels of protections to medical marijuana card holders from discrimination.

Additionally, the Supreme Courts for the states of California, Washington, and Montana have all ruled that an employer has no duty to accommodate the use of an “illegal drug” such as marijuana. The fact that marijuana remains a schedule one “illegal drug” under federal law has been critical in each ruling for the employer.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

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