On June 15, 2015, the Colorado Supreme Court, in Coats v. Dish Network, LLC, 2015 CO 44 (2015), unanimously ruled that an employer could lawfully terminate an employee who tested positive for marijuana in a random drug test, even though the employee’s use of marijuana was off-duty and prescribed under Colorado’s Medical Marijuana Amendment. With the Coats decision, the Colorado Supreme Court joined courts from California, Montana, Oregon, and Washington which have upheld an employer’s right to hire, discipline, or terminate an employee for marijuana use, even if the employee’s use is accordance with the state’s medical marijuana law.

In this case, Brandon Coats (Coats) was an employee of Dish Network who was a quadriplegic suffering from debilitating muscle spasms. Coats had a valid medical marijuana prescription which he used to help control the muscle spasms. Dish Network terminated Coats after a positive drug test for marijuana, even though he was never under the influence of the drug on company premises. Coats filed suit against Dish Network alleging wrongful termination under Colorado’s “lawful activities statute” (Colo. Rev. Stat. §24-34-402.5), which prohibits employers from terminating employees for lawful off-the-clock behavior. The Colorado trial court dismissed the case, ruling that the employer had acted lawfully. In a split decision, the Court of Appeals agreed, reasoning that the employment termination was lawful because marijuana use is illegal under federal law and thus could not be considered “lawful activity” under Colorado’s “lawful activity statute,” even though it is explicitly legal under the state’s medical marijuana law.

In a unanimous decision, the Colorado Supreme Court affirmed the dismissal of the case. The court reasoned that while Coats’ use of medical marijuana was lawful under Colorado’s medical marijuana law, marijuana is a “Schedule 1 substance” under the federal Controlled Substances Act and its use, even for medicinal purposes, is a federal criminal offense. As a result, Coats’ use of medical marijuana was not “lawful” and he was not protected from termination because of his use of medical marijuana.

Employers should take note of the decision in Coats. Currently, almost half the states have laws that permit the use of marijuana for medical purposes. These states include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. As many of these laws have been enacted rather recently, case law in this particular area is still developing.

Before taking adverse action against an employee who uses medical marijuana, employers should review the medical marijuana law of the state in which the employee is located. Most of the state medical marijuana laws explicitly prohibit the use of marijuana in the workplace and/or provide that employers need not accommodate any form of marijuana use in the workplace. However, a handful of state medical marijuana laws contain antidiscrimination or reasonable accommodation provisions directed at employers (for example, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, and New York).

ThinkHR will continue to monitor developments in this area.