United States: Colorado Supreme Court Permits Employers To Enforce Zero-Tolerance Drug Policies Against Medical Cannabis Users

On June 15, 2015, the Colorado Supreme Court held that Colorado employers can enforce zero-tolerance drug policies against employees who are permitted under state law to use medical cannabis, even if the employees use and are under the influence of the drug only during nonworking hours. The case, Coats v. Dish Network, LLC, No. 13SC394, 2015 CO 44 (2015), examined whether Colorado's "lawful activities statute," which protects employees from termination for "lawful activity off the premises of the employer during nonworking hours," restricts an employer's ability to terminate a state medical cannabis patient for off-duty use.1 The Colorado Supreme Court held that the term "lawful" in the statute means that the off-duty activities in question must be lawful under both state and federal laws. While Colorado has legalized medical cannabis (and also recreational use of the drug), federal law still prohibits it. Accordingly, employers who dismiss employees for their medical drug use do not violate the lawful activities statute because using cannabis is still illegal under federal law. This decision provides some clarity (but leaves other questions unanswered) as companies and legal state medical cannabis patients continue to grapple with the tension between federal law and certain state laws regarding medical cannabis use.

Current State and Federal Cannabis Laws

The federal government has criminalized the use of cannabis and classified it as a Schedule I substance, which means the drug has a "high potential for abuse" and "has no currently accepted medical use in treatment in the United States," and there is "a lack of accepted safety for use of the drug or substance under medical supervision." 2

Despite this criminalization at the federal level, many states have passed laws that legalize cannabis possession and use for medical purposes. Twenty-three states, plus the District of Columbia and Guam, currently allow medical cannabis. 3 In 2000, Colorado passed Amendment 20, which grants patients who use cannabis for medical purposes an affirmative defense to state criminal laws prohibiting the use of the drug. 4 Additionally, in 2012, Colorado voters passed Amendment 64, which permits the personal and recreational use of cannabis in the state. 5

Fact Background and Analysis

Brandon Coats, the petitioner in this case, is a quadriplegic and suffers from painful muscle spasms. From 2007 to 2010, Coats worked as a telephone customer service representative for the respondent, Dish Network. In 2009, Coats received a Colorado medical cannabis license to help treat the pain caused by his quadriplegia. He consumed cannabis after work hours and in compliance with Colorado state law.

In 2010, Coats tested positive for THC during a random drug test. He had informed Dish that he was a registered medical cannabis patient and was likely to fail the test. Dish fired Coats after his positive drug test in accordance with the company's substance abuse policy.

Coats then filed a wrongful termination claim against Dish under Colorado's lawful activities statute. 6 He argued that his medical cannabis use, which occurred outside of work, was lawful under Colorado's Amendment 20. 7 The trial court dismissed Coats's claim, ruling that the state medical cannabis laws provide patients with an affirmative defense against state criminal prosecution but do not make their use of cannabis a "lawful" activity under section 24-34-402.5. Coats appealed.

The Colorado Court of Appeals affirmed the trial court's decision on different grounds. It concluded that the plain meaning of the term "lawful" under section 24-34-402.5 required the activity to be permitted by both state and federal law. The appellate court concluded that it did not need to reach the issue of whether Coats's cannabis use was lawful under state law because Coats's activity was illegal under the federal Controlled Substances Act.

The Colorado Supreme Court's 6–0 decision affirmed the Court of Appeals, and rejected Coats's argument that the General Assembly intended for the term "lawful" to mean "lawful under state law." Thus, the court concluded that Coats's use of cannabis was unlawful because it was prohibited by federal law. As such, Coats's use of cannabis was not protected under the lawful activities statute, and that statute did not provide a basis to overturn his discharge.


Although the Coats decision is limited to Colorado law, it provides some guidance for businesses operating in other states that permit medical cannabis. The opinion suggests that, as long as cannabis remains unlawful under federal law, companies likely can enact and enforce zero-tolerance drug policies even if employees have medical conditions for which they were granted medical cannabis permits under state law. The California Supreme Court reached essentially the same decision in 2008, holding that the Fair Employment and Housing Act did not require an employer to make accommodations for an employee who used medical cannabis. 8 The Coats decision is consistent with Ninth Circuit and Oregon State Supreme Court decisions holding that employers have no duty under the Americans with Disabilities Act to accommodate medical cannabis use because all cannabis use remains unlawful under federal law. 9

However, before making employment decisions with respect to employees who use legal cannabis for medicinal or personal reasons, employers should familiarize themselves with the contours of the applicable state and local laws where they have employees and do business. Some states have passed legislation prohibiting employers from discriminating against employees for using medical cannabis, but their approaches differ. For example, Illinois permits nondiscriminatory zero-tolerance policies, 10 whereas Arizona specifically prohibits employers from discriminating against a registered medical cannabis user who has failed a drug test. 11 Because Arizona's statutory protections for medical cannabis users are explicit, a decision by Arizona's high court could potentially warrant a different result from the Coats decision. In addition to specific legal cannabis laws, the Washington D.C. Council recently voted to ban all pre-employment drug testing.

Given the nuances in various state laws and the recent proliferation of legislation and litigation regarding employee cannabis use, employers should review developments in this quickly evolving area prior to taking adverse employment actions against employees premised on cannabis use. To that end, employers should periodically review any substance abuse policies in order to confirm continuing compliance with all applicable laws where the employers maintain active workforces. Additionally, particularly in those states with anti-discrimination protections for medical cannabis users, employers should ensure consistent enforcement and application of their substance abuse policies by establishing consistent guidelines for when drug tests will be conducted and by testing broadly for alcohol and Schedule I drugs (as opposed to only testing for cannabis). Finally, employers should always consider their employees' specific job duties and functions and carefully assess the tension between decriminalization of cannabis and applicable tort and occupational health and safety laws in crafting and enforcing substance abuse policies.


1.Colo. Rev. Stat. Ann. § 24-34-402.5 (West 2015). Passed in 1990, Colorado's law states: "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 certain exceptions apply. Of the 23 states (plus D.C.) that permit medical cannabis use, six states have similar laws that protect workers from employment discrimination based on their lawful, off-duty activities: California, Illinois, Minnesota, Montana, Nevada, and New York. Some of these statutes specifically reference "lawful consumable products." Minn. Stat. Ann. § 181.938. See also N.Y. Lab. Law § 201-d(2) (McKinney 2015) (prohibits discrimination on the basis of "an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property") (emphasis added).

2.21 U.S.C. § 812 (2012).

3.Several additional states permit the use of certain high-cannabidiol (CBD)/low-tetrahydrocannabinol (THC) nonpsychoactive strains, and four states and the District of Columbia have legalized recreational use.

4.See Colo. Const. amend. XX.

5.See Colo. Const. amend. LXIV.

6.See Colo. Rev. Stat. Ann. § 24-34-402.5 (West 2015).

7.See Colo. Const. amend. XX.

8.Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (2008).

9.See James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012) (holding that because the ADA defines "illegal drug use" by reference to federal, rather than state, law, plaintiffs did not meet the requirements of "qualified individuals with a disability" under the ADA because the ADA expressly provides that "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs"); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518, 520-21, 526-30, 536 (Or. 2010) (holding that employers are not obligated to accommodate employees' medical cannabis use under the state's disability-discrimination statue because (i) Oregon law requires that statute be interpreted consistently with the ADA, (ii) to the extent the statute affirmatively authorized the use of medical cannabis, federal law preempts state law; and (iii) cannabis is still an illegal drug under federal law and therefore not protected under the ADA).

10.See 410 Ill. Comp. Stat. Ann. 130/50(b) (2014) ("Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner.").

11.See Ariz. Rev. Stat. Ann. § 36-2813(B) (2015) ("Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon ... [a] registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.").

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.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
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 you may opt out by clicking here

    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.


    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.


    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.

    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.


    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.


    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.


    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.


    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 .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions