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Rocky Mountain High Part II: Colorado’s Highest Court Approves Employer’s Stance that Employee Toke is No Joke

Written by David Cohen with David Katz

Last week the Colorado Supreme Court ruled that an employer can fire an employee for use of medical marijuana away from the workplace.  The case is Coats v. Dish Network, No. 13SC394 (June 15, 2015).

The plaintiff is a quadriplegic who has a state-issued license to use medical marijuana to treat muscle spasms that keep him tied to a wheelchair.  After he failed a random drug test in 2010, the Dish Network fired him for violating the company’s zero-tolerance drug policy.  He sued claiming that Dish unlawfully fired him for engaging in a lawful activity (off-duty use of medical marijuana, which is legal under Colorado state law) under Colorado’s Lawful Activities Statute (C.R.S. § 24-34-402.5), which prohibits employers from discharging an employee who engages in such activities.  The Court, however, read “lawful” more broadly than the plaintiff saying that such activities must be legal under both state and federal law.  Although Colorado may have liberal marijuana laws, the federal government still considers the drug a dangerous controlled substance.

The decision is a clear win for employers – at least those operating in Colorado.

Since 1996, twenty-four United States jurisdictions have voted to permit the use of marijuana for medical purposes.  Additionally, five jurisdictions, including Colorado, Washington, Oregon, Alaska, and the District of Columbia, have passed laws legalizing the sale and distribution of marijuana.  In addition, many states, like Colorado, have enacted “off-duty conduct” laws prohibiting employers from taking any job-related action against employees based on an employee’s lawful conduct off the job, conduct ranging from social media postings to consumption of alcohol.  But as long as inconsistencies between state and federal marijuana laws remain, employees working in marijuana-friendly states may not be able to look to their off-duty conduct laws to avoid termination.

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David Katz