Colorado high court says employer can fire for use of legal medical pot

The employer could terminate an employee for failing a random drug test for medicinal marijuana use legal under state law, but not under federal.

On June 15, 2015, the Colorado Supreme Court issued a major bellwether decision holding that a Colorado employer can legally fire an employee who fails a random drug test, despite that the worker tested positive for using properly prescribed medicinal marijuana outside of work hours at home.

The case of Coats v. Dish Network, LLC, is important to both employers and employees in Colorado. Brandon Coats suffers from quadriplegia that requires him to use a wheelchair and causes painful muscle spasms. Despite these challenges, he worked for three years for Dish Network providing customer service by telephone. During his employment with Dish Network, he procured a Colorado state license to use medical marijuana to relieve the symptoms of his muscle spasms, as allowed under the Colorado Constitution.

Coats' employer performed a random drug test and Coats, not surprisingly, failed after testing positive for tetrahydrocannabilol or THC, the psychoactive component in marijuana. Despite the legality of medical marijuana under Colorado state law, Dish Network fired coats "for violating the company's drug policy."

In response, Coats sued for wrongful termination alleging that the employer had engaged in a "discriminatory or unfair employment practice" under the Colorado Lawful Activities Statute for firing him for "lawful activity off the premises of the employer during nonworking hours."

The Supreme Court noted that it would look at the "commonly accepted and understood meaning" of the term "lawful" because it was not defined in the statute. Looking at Colorado court opinions and those of other states, the court held that lawful means either "permitted by law" or "not contrary to, or forbidden by law."

The Colorado Supreme Court held that the word "lawful" as used in the state statute is not restricted to an activity unlawful under state law only, so because medical marijuana is illegal under federal law, the employer's termination of Coats' employment was not an unfair employment practice and Dish Network could lawfully terminate him.

This decision raises many legal questions for Colorado employers and employees. Should a patient using medical marijuana seek only a job that does not drug test, that agrees to allow workers to stay if they fail for legal medicinal use or that will agree to allow the particular employee an exception to a strict policy? What about a person who uses recreational marijuana at a level legal under Colorado law?

Employers must examine their business needs and policies vis-à-vis the state laws that allow some legal marijuana use to determine whether they want to carry out a policy like that of Dish Network. Further, they will need to decide whether to enshrine such policies in written manuals, put their expectations and practices into employment contracts or otherwise condition employment, or reserve the right to decide on a case-by-case basis?

Any employee or employer facing these legal issues should seek the advice and counsel of an experienced Colorado employment attorney.

From their offices in Aurora, the business lawyers at Kishinevsky & Raykin, Attorneys at Law, represent both employers and employees in a variety of employment law matters.

Keywords: employer, Colorado Supreme Court, wrongful discharge, wrongful termination, case, drug test, medical marijuana, federal law, state law, employee, worker, Coats v. Dish Network, legality, THC, unfair employment practice, Lawful Activities Statute