United States: Colorado Supreme Court Upholds Termination Of Employee For Medical Marijuana Use

On June 15, the Colorado Supreme Court provided good news to Colorado employers that prohibit employee marijuana use.  In the long-awaited decision in Coats v. Dish Network, the court ruled that medical marijuana use—which is permitted under state law but prohibited under federal law—is not a "lawful activity" under Colorado's lawful activities statute. 

In November 2000, Colorado voters passed an amendment to the state Constitution—Amendment 20 or the Medical Marijuana Amendment—which allowed patients suffering from certain conditions to obtain a state-issued registration card for the purchase and use of marijuana without fear of criminal prosecution by state authorities.  Although the Medical Marijuana Amendment states "[n]othing in this section shall require any employer to accommodate the medical use of marijuana in any workplace," there was uncertainty surrounding the interplay between the Medical Marijuana Amendment and Colorado's lawful activities statute, an employment discrimination provision in the Colorado Civil Rights Act.1  Specifically, advocacy groups claimed that because the Medical Marijuana Amendment decriminalized marijuana use, the lawful activities statute prohibited Colorado employers from disciplining or firing employees for off-duty use. 

Following its review of the generally understood meaning of the word "lawful," as well as the General Assembly's intent when it enacted Section 24-34-402.5 of the Colorado Civil Rights Act, the Coats court clarified that the word "lawful" is not limited to what is permissible under state law only, but also contemplates the lawfulness of the activity in question under federal law.  In reaching this decision, the Colorado Supreme Court recognized that marijuana remains a prohibited Schedule I substance under the federal Controlled Substances Act, rendering its use and possession unlawful under federal law.  Marijuana, even for medical purposes, therefore, falls outside the ambit of Colorado's statutory protection for lawful off-duty conduct. 

The court did not address recreational, as opposed to medical, use of marijuana, but there is every reason to believe that the same result applies in the context of recreational use.2

Coats' Medical Marijuana Use and Termination of Employment Following Positive Drug Test

The plaintiff, a quadriplegic, was employed as a telephone customer service representative from 2007 to 2010.  According to his complaint, the plaintiff's doctor recommended that he use medical marijuana to supplement more traditional medications.  Accordingly, the plaintiff became licensed by the state of Colorado, pursuant to the Medical Marijuana Amendment, to purchase marijuana, which he claimed he reserved for use at home.  As a result of his off-duty use, during a random drug test at work, the plaintiff tested positive for Tetrahydrocannabinol ("THC"), which is the psychoactive ingredient in marijuana.  In keeping with its drug policy, the company terminated the plaintiff's employment.  

The plaintiff sued the employer, claiming his termination violated Colorado's lawful activities statute.  The statute prohibits an employer from discharging an employee for "engaging in any lawful activity off the premises of the employer during nonworking hours," subject to certain exceptions.  In his complaint, the plaintiff alleged that the Medical Marijuana Amendment made his use of medical marijuana a lawful activity under Colorado state law, and that his termination therefore violated the statute.  

The employer filed a motion to dismiss the complaint.  Its primary argument was that marijuana use is not protected by Colorado's lawful activities statute.  The employer explained that to be protected, off-duty conduct must be lawful under both state and federal law.  Therefore, the statute did not protect his use of medical marijuana (even if it was off its premises and during non-working hours) because marijuana use is illegal under federal law.  The employer argued also that the Medical Marijuana Amendment did not make the use of medical marijuana lawful or confer a constitutional right upon the plaintiff to use medical marijuana.  Rather, the employer asserted that the Medical Marijuana Amendment only created an affirmative defense to state criminal conviction against a patient who possesses and uses the drug in compliance with the amendment.   

In response to the employer's arguments, the plaintiff claimed that the lawful activities statute does not reference federal law, and therefore activity only has to be lawful under state law in order to be protected.  The plaintiff contended that the Medical Marijuana Amendment conferred an affirmative right to use medical marijuana on those who qualify.  Therefore, the plaintiff concluded that his use of medical marijuana was lawful under state law and, accordingly, constituted a "lawful activity" under the statute.   

The district court granted the employer's motion to dismiss.  It held that prior "interpretations of the Medical Marijuana Amendment limit the effect of the amendment as an affirmative defense to criminal prosecution," and that, "[t]he amendment does not make the use of medical marijuana a lawful activity, so as to preclude an employer from termination based on this conduct."  Therefore, since the "use of marijuana, even where such use is in full compliance with Colorado's Medical Marijuana Amendment, is not a lawful activity," the plaintiff's claim failed.

The Colorado Court of Appeals upheld the dismissal, but came to its conclusion using a slightly different legal analysis.  It determined that "for an activity to be 'lawful' in Colorado, it must be permitted by, and not contrary to, both state and federal law."  Thus, the appellate court concluded that "because plaintiff's state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law . . . it was not 'lawful activity' . . ."  Accordingly, it upheld dismissal of the complaint.   

The plaintiff appealed, and the Colorado Supreme Court granted the appeal on two issues: (a) whether the lawful activities statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance; and, (b) whether the Medical Marijuana Amendment makes the use of medical marijuana "lawful" and confers a right to use medical marijuana to persons lawfully registered in the state.

The Colorado Supreme Court Affirms the Lower Court Decision

With regard to the first issue, the Colorado Supreme Court affirmed the appellate court's decision that because the plaintiff's marijuana use was unlawful under federal law, it could not fall within the lawful activities statute's protection for "lawful" activities.  In arriving at this decision, the court first determined that because the statute did not define the word "lawful," the court must construe the term "with a view toward giving the statutory language its commonly accepted and understood meaning."  The court therefore looked to its own prior construction of the word, as well as that of courts in other states, and agreed that the term "lawful" is "that which is 'permitted by law' or, conversely, that which is not contrary to, or forbidden by law."

In considering whether "lawful" under the state statute subsumed activities that are unlawful under federal law, the court refused to adopt the plaintiff's reading that the term refers only to actions that are "lawful under Colorado state law."  Instead, the court asserted that "the term is used in its general, unrestricted sense, indicating that a 'lawful' activity is that which complies with applicable 'law,' including state and federal law."  The court emphasized that the federal Controlled Substances Act prohibits the use of marijuana for medical purposes and makes no exception for its use in accordance with any state's law.3 The plaintiff's use of medical marijuana, therefore, could not be protected activity under the lawful activities statute because it was unlawful under federal law.

Finally, the court disagreed with the plaintiff's argument that the Colorado General Assembly intended the word "lawful" to mean "lawful under Colorado law," stating that it could "find nothing to indicate that the General Assembly intended to extend section 24-34-402.5's protection for 'lawful' activities to activities that are unlawful under federal law."  All told, the court held that "because [the plaintiff's] marijuana use was unlawful under federal law, it does not fall within section 24-34-402.5's protection for 'lawful' activities."   

In light of this ruling, the court declined to address the second issue – whether Colorado's Medical Marijuana Amendment makes the use of medical marijuana "lawful" by conferring a right to individuals lawfully registered to use it within the state.

Practical Implications

Under Coats, Colorado employers can, without running afoul of the lawful activities statute, continue to administer drug-free workplace and testing policies, including taking adverse action on the basis of a positive marijuana test result even if the employee has a physician's recommendation for medical marijuana. Additionally, employers may take adverse employment action, including dismissal, against prospective and current employees based on their use of substances deemed illegal under state and/or federal law without exposure under the lawful activities statute.  To support adverse action, if any, however, employers should ensure that their policies clearly define "illegal" drug use to include all drugs made illegal under federal, state or local law.  Employers should also re-visit policy provisions relating to "prescription" medications to ensure that unqualified prescription medication use is not authorized, and administer testing policies and disciplinary decisions in a fair and consistent manner.

Although not addressed by the Colorado Supreme Court, the Coats decision provides strong support for the proposition that employers may enforce drug policies against employees in Colorado who use recreational marijuana following the passage of Amendment 64.  Like the Medical Marijuana Amendment, Amendment 64 is a marijuana-related amendment to the Colorado State Constitution.  Amendment 64 decriminalizes an adult's recreational use of marijuana without a physician's recommendation.  The analysis in the Coats decision applies with equal force to recreational as well as medical use, so it is very likely that a challenge to a discharge for recreational marijuana use will meet the same fate as the plaintiff's claim.

It bears emphasis that the Coats decision does not address potential challenges under other employment laws or court decisions such as disability laws or employee privacy rules.  However, Coats makes it more likely that the outcome of such disputes will be employer-favorable. 

In Colorado and nationwide, the legal landscape and public perception of marijuana use is rapidly changing.  As such, employers should continue to monitor the debate on medical and recreational marijuana for further developments.  Certainly, to the extent marijuana is ever decriminalized under federal law, the Coats decision will be significantly undermined.

Footnotes

1. Colo. Rev. Stat. Section 24-34-402.5(1), states that "It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction: (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest."

2. In addition to the Coats decision, Colorado employers should be aware of an earlier employer favorable decision in Curry v. MillerCoors, Inc., 2013 U.S. Dist. LEXIS 118730 (D. Colo. Aug. 21, 2013) in which the U.S. District Court for the District of Colorado dismissed disability and privacy law challenges related to employment termination following a positive test result notwithstanding assertion that use of medical marijuana was lawful under Colorado law.

3. The court cited to the U.S. Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1 (2005), which found that "'[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail,' including in the area of marijuana regulation."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Kalisha Chorba
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.